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2016 (11) TMI 751 - ALLAHABAD HIGH COURT

2016 (11) TMI 751 - ALLAHABAD HIGH COURT - TMI - Vires of Section 42(4) and 42(5) of U.P. Value Added Tax Act, 2008 - Validity of Rule 70(5) of U.P. Value Added Tax Rules, 2008 - Provincial Tax under Section 54(1)(1) - late payment of tax - imposition of penalty - eligibility certificate under Section 4-A of U.P. Trade Tax Act, 1948 - petitioner was entitled to avail aforesaid exemption up to 15.02.2010 or till the amount of exemption of tax reaches to the extent of ₹ 959,51,76,417/-, whic .....

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stitutionality unless shown otherwise but presumption cannot go to uphold a provision whereof compliance is impossible by any person and still that statute hold one guilty and further liable of penalty and other dues for non compliance. The above doctrine and also exposition of law that a statute cannot require performance of something which is impossible and places a burden upon a person for no fault of him has also been considered in M/s. D.C.M. Ltd. and others Vs. State of U.P. And others Wri .....

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e can be expected to comply in retrospect i.e. during July 2008 to December 2008. In our view, Sub-rule (5) of Rule 70 as substituted by U.P. VAT (First Amendment) Rules, 2009 in Rules, 2008 is apparently irrational, arbitrary, illegal and unreasonable, hence violative of Article 14 of the Constitution. We have no hesitation in striking down the same, being wholly illegal, absurd, unfair and unreasonable, thus, violative of Article 14 of the Constitution. - Consequently, sub-rules (7) to (11 .....

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ute relates to deposit of tax from January 2008 to June 2008 and sufficient period had already elapsed since then, in order to mitigate and avoid any further scope of litigation and in the interest of both the parties, we provide and permit petitioners to deposit requisite amount of tax along with return within two months from today,if not already deposited, and if the said direction is complied with, respondent tax authorities shall treat said deposit and submission of return as due compliance .....

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RIT TAX No. - 1680 of 2008, WRIT TAX No. - 1676 of 2008, WRIT TAX No. - 1601 of 2008, WRIT TAX No. - 1695 of 2008 - Dated:- 10-8-2016 - Hon'ble Sudhir Agarwal And Hon'ble Kaushal Jayendra Thaker, JJ. For the Petitioner : Piyush Agrawal,Bharatji Agrawal For the Respondent : C.S.C. ORDER 1. Heard Sri Bharat Ji Agrawal, learned Senior Counsel assisted by Sri Piyush Agrawal and Rahul Agrawal; Sri S.D.Singh, Senior Advocate assisted by Nishant Mishra and Diptiman Singh for the petitioners and .....

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e of the petitioners have also challenged validity of Rule 70(5) of U.P. Value Added Tax Rules, 2008 (hereinafter referred to as the 'Rules, 2008') as stands substituted by U.P. VAT (First Amendment) Rules, 2009. 3. In writ petition no. 1448 of 2009, writ of certiorari for quashing order dated 05.06.2009 passed by Joint Commissioner, Corporate Circle, Commercial Tax, Noida has also been prayed whereby respondent 3 has found that in view of amended provision, petitioner was supposed to de .....

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rred to as the 'Second Petition') also deals with a similar order dated 06.06.2009 of penalty under Section 54(1)(1) for alleged delayed payment of due tax for the month of April 2008 which according to respondent 3 was liable to be deposited up to 20.11.2008 but was actually deposited in December 2008, therefore, in respect to Provincial Tax it has demanded penalty of ₹ 25,35,230/- and in respect of Central Tax amount of penalty imposed is ₹ 33,97,959/-. 5. Petition No. 1450 .....

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Joint Commissioner has been challenged since it has informed petitioner M/s. ACC Ltd. that it has withheld net tax payable for the period January 2008 to June 2008 whereupon it will have to pay interest under Section 33(2) of Act, 2008. 7. In Writ Petition No. 1680 of 2008 Joint Commissioner has issued notice dated 21.07.2008 which has also been challenged whereupon petitioner M/s. H-One India Pvt. Ltd. has been directed to deposit tax of January 2008 to June 2008 by 25.07.2008. 8. Similar noti .....

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referred to as the 'Act, 1956'). It established a new unit pursuant to the representation made by State Government in the notification dated 31.03.1995, allowing certain tax exemptions. Petitioner's unit was established for manufacture of printed and unprinted multi layer laminated metal and non metal plastic films etc. It has its unit established at Plot No. A-1, Sector-60 and D-1 to 15, 16 Sector 59, New Okhla Industrial Development Authority (hereinafter referred to as the 'NO .....

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the extent of ₹ 959,51,76,417/-, which ever is earlier. 12. The facts in all other writ petitions are similar, inasmuch as, all the petitioners have been granted eligibility certificate entitled for exemption and for the period of dispute i.e. from January 2008 to June 2008 it is admitted by respondents that exemption benefit was available to all the petitioners. 13. It so happened that Act, 1948 was repealed and a new Act i.e. Act, 2008 came to be enacted by Provincial Legislation w.e.f. .....

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tanding anything contained in this Ordinance any industrial unit availing tax exemption or reduction in the rate of tax on the date of commencement of this Ordinance or an industrial unit which is granted the facility of exemption or reduction in the rate of tax under the erstwhile Act shall be treated as a unit availing tax deferment. A unit availing tax deferment under the erstwhile Act on the commencement of this Ordinance or a unit, which is granted benefit of tax deferment under the erstwhi .....

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ment shall be in such manner as may be prescribed." (Emphasis added) 14. In exercise of powers under Section 79 read with Section 74, State Government framed rules i.e. Rules, 2008 and rule 70 thereof provided that a dealer holding eligibility certificate granted before commencement of Ordinance (later Act, 2008) shall be entitled for tax deferment for the extent and period mentioned in eligibility certificate, for balance amount and for the remaining period, as the case may be. 15. Subsequ .....

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(6) and (7) are reproduced as under: "42- Treatment of industrial units availing exemption or reduction in the rate of tax under erstwhile Act - .............. (4) The industrial unit availing benefit of exemption from, or reduction in the rate of, tax on the turnover of sales before the date of commencement of this Act or an industrial unit which is granted the facility of exemption from, or reduction in the rate of, tax on or after such commencement, on the turnover of sales under the er .....

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elevant tax period, (d) the net tax payable has been deposited along with return of tax period in prescribed manner, (e) the refund shall be subject to the provisions of section 40 except that the amount shall not be adjusted against the admitted tax liability, (f) the facility of refund shall cease on the day when the amount or the period mentioned in the Certificate of Entitlement, whichever is earlier, (g) the tax payable on the turnover of sales of goods mentioned in the Certificate of Entit .....

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ble to the extent or proportionate to taxable goods other than non-vat goods sold; in case of an industrial unit availing facility of exemption from tax under the erstwhile Act and the Central Sales Tax Act, 1956. (ii) the partial amount of net tax computed under clause (i) above, in proportion to the rate of tax available for exemption to the rate of tax payable under the erstwhile Act, in case of an industrial unit availing benefit of reduction in the rate of tax (5) (a) The amount found refun .....

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d only the balance amount shall be refunded. (6) (a) The total amount of the refund shall be limited to the extent of the differential amount of the total eligible amount available for exemption or reduction in the rate of tax and the amount availed in exemption or reduction in the rate of tax before the commencement of this Act. (b) The total period of the refund shall not exceed difference of the total period available for exemption or reduction in the rate of tax and the period exhausted befo .....

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unit availing benefit of exemption or of reduction in the rate of tax or granted benefit of tax from exemption or reduction in the rate of tax under Act, 1948 and Central Sales Tax Act, 1956 shall be permitted to avail benefit of exemption or reduction in the rate of tax on the turn over of sale and purchase or both, as the case may be, on or after the commencement of Act, 2008. Sub Section (3) however, provided such units availing benefit of exemption etc. to apply Government for issue of a ce .....

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d 07.11.2008 wherein period of entitlement for exemption mentioned is 01.01.2008 to 15.02.2010. Certificate further mention amount of entitlement of refund as ₹ 721,08,88,090.94. 18. For the purpose of availing entitlement for exemption under Act, 2008 as amended by Amendment Ordinance, 2008, a unit would have to deposit net tax payable along with return of tax period in prescribed manner. Sub section (4) of Section 42 provided that thereafter unit would be entitled for exemption by way of .....

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ch manner as may be prescribed, but the assessing authority may in its discretion and for reasons to be recorded, extend the date for submission of the return by any dealer or class of dealers: Provided that every taxable dealer, including a dealer who claims input tax credit, shall also submit along with tax return a list of- (i) purchases of goods made from registered dealer in respect of which the dealer has received tax invoices; (ii) sales of goods made to registered dealers in respect of w .....

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n or dealer to whom provisions of section 34 apply, shall, in respect of dealers from whom any amount of tax has been deducted, submit such statement within such time as may be prescribed. (4)Where as a consequence of the date for the submission of return being extended under subsection (1) on the application of the dealer, the deposit of tax under sub-section (2) is deferred, there shall be payable simple interest at the rate of one and quarter percent per men sum on such deposit for the period .....

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nce of tax due and the interest payable under sub-section (4) as if the time for submitting the original tax return had been extended on the application of the dealer to the date of submission of the revised tax return. If, the revised tax return shows lesser amount of tax to be due than was shown in the original tax return the dealer may adjust the excess amount towards the tax due for the subsequent tax periods. ................." 20. Under Rule 45 return has to be filed for each calendar .....

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e on which the dealer has become liable for payment of tax and shall end with the last day of the calendar month in which the dealer has become liable for payment of tax; (ii) after expiry of first tax period, each calendar month, of the assessment year in which the dealer has become liable for payment of tax, shall be a tax period; ...................... (2) Except as provided in sub rule (10) of this rule, every dealer liable to pay tax, shall, before expiry of a period of twenty days, commenc .....

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e for the assessment year or part of the assessment year, as the case may be, immediately preceding such assessment year, has exceeded twenty-five lakh rupees, shall, before expiry of a period of twenty days after the last day of each calendar month of a quarter referred to in clause (b) of subrule (1), deposit amount of net tax payable by him and Treasury Challan of such deposit shall be submitted to the assessing authority and shall submit to his assessing authority tax return within twenty da .....

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fer, such department shall, before submitting such return, prepare a bill, in triplicate, for the net amount of tax payable, endorse it to the assessing authority in accordance with the financial rules on the subject and two copies thereof with such return. One of the copies shall be retained by the assessing authority and the other copy shall be sent to the Accountant General, Uttar Pradesh for crediting the amount to the account of the Commercial Tax Department. Provided further that the net t .....

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uction is made. (6) Every person, responsible for making tax deduction under any provision of section 34, shall, for each quarter ending with thirtieth June, thirtieth September, thirty-first December and thirty-first of March of each assessment year, submit the statement in Form XXV containing following particulars: ................... (8) Dealers having more than one place of business shall include the turnover of all branches of his business in Uttar Pradesh in the return submitted for the pr .....

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d and for adequate reasons to be recorded in writing, extend the time for filing such statement for a period not exceeding ninety days. ............... 21. Thus, even after grant of certificate of entitlement, an industry availing benefit of tax exemption would have got benefit only when first it has to deposit net tax along with return and thereafter such deposited tax shall be refunded. 22. Amendment Ordinance, 2008 came to be substituted by U.P. Act No. 19 of 2008 published on 29.08.2008 and .....

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Rule 70 as it existed earlier and stood after amendment by notification dated 30.01.2009 is reproduced as under: Column-I Existing rule Column-II Rule as hereby substituted (1) Subject to other provisions of this rule, dealers holding eligibility certificate, granted before, on or after the date of commencement of the Act, shall be eligible for tax deferment, referred to in section 42 to the extent and for the period, whichever expires earlier, as under: (a)(i) In case of an industrial unit ref .....

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o the extent of balance amount as on the date of commencement of the Act liable for deferment. (b) For the remaining period of exemption from tax as on the date of the commencement of this Act, out of the maximum period mentioned in the eligibility certificate. (2) Facility of deferment shall be available in respect of net amount of tax payable under the Act. Explanation: Net amount of tax payable means- (a) In case of an industrial unit availing facility of exemption under the Uttar Pradesh Tra .....

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ion to the rate of tax available for exemption to the rate of tax payable under the Uttar Pradesh Trade Tax Act, 1948 as if the Uttar Pradesh Trade Tax Act, 1948 had not been repealed. (3) Facility of tax deferment shall be available under the Uttar Pradesh Value Added Tax Act, 2008 and the Central Sales Tax Act, 1956. (4) Aggregate of amounts of tax, payment of which is deferred for each assessment year under the Uttar Pradesh Value Added Tax Act, 2008 and the Central Sales Tax Act, 1956, shall .....

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f deferment of net tax payable under the Act shall file statement of computation of net tax payable, total amount of eligibility, amount availed up to last month, amount availed in the month and balance at the end of the month, along with the return of the tax period (1) Industrial unit availing or granted the facility of exemption or reduction in the rate of tax under erstwhile Act, may apply to the Commissioner for issue of certificate of entitlement duly filled and signed by the person author .....

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oner a report in form XLVI within a period of thirty days from the date of receipt of the application. (4) If the Commissioner is satisfied that information furnished is correct and complete and report of the assessing authority confirms the particulars of the application, he shall issue the certificate of entitlement in form XLVII within sixty days of the receipt of the application. (5) If the net tax payable for tax periods commencing on January2008 and ending with 30th June 2008,has not been .....

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ils to deposit the net tax payable for the period and within the time prescribed under sub-rule (5) of this rule, the unit shall be liable to pay the interest provided under subsection (2) of section 33 of the Act and penalty, if any, in accordance with the provisions of section 54 of the Act (8) The amount of refund or interest if any, under section 42 of the Act shall be made in accordance with the provisions of the rules 50 and 51. (9) Aggregate of amounts of tax payable under the Act and the .....

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yable under the Act shall file statement of computation of net tax payable, total amount of eligibility, amount availed up to last month, amount availed in the month and balance at the end of the month, along with the return of the tax period in form XLVIII 25. This substituted Rule 70(5) though came into force on 30.01.2009 but requires industrial units availing exemption/ concession to deposit tax payable during the period of January 2008 to May 2008 by 20.08.2008 to 20.12.2008, but for the pe .....

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st time making such different procedure came to be enacted on 16.07.2008 and relevant rule came to be enacted on 30.01.2009 by which date time for deposit of tax along with return had already elapsed. The submission is that petitioners and other similarly placed industries could have never imagined or dreamt that in future legislature will change scheme for entitlement of tax benefit for remaining period/ amount in a totally different manner i.e. first amount of tax along with return would be de .....

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e a reasonable opportunity has to be given to concerned industries like petitioners and therefore, the aforesaid provisions need to be read down in a manner so that intention of legislature become practicable and is capable of compliance. A provision has to be read as to make entire things workable and functional, compliance for the period, already expired before actual amendment is just improbable and impossible. 27. The learned Standing Counsel when confronted with the situation could not disp .....

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er Rule 70(6) and (7) though have not committed anything wrong or illegal. He however, submitted that provision by itself is not irrational and arbitrary but can always be read in a manner so as to render it functional, practicable and compliable. 28. We have heard learned counsel for the parties, perused the authorities and relevant statutes. 29. The amended scheme of deposit of net amount of tax to which petitioners industries were entitled for exemption alongwith return per-se is neither ille .....

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amended by Amendment Act, 2008 read with Rule 70(5) as amended by U.P. VAT (First Amendment) Rules, 2009 requires petitioners or any person similarly situated, to do something which is practicably possible. A provision compliance whereof is improbable, irrational, in that view of the matter is Rule 70(5) of U.P. VAT (First Amendment) Rules, 2009 is invalid, irrational and unreasonable. 30. Section 42(4)(d) as amended by Amendment Act, 2008 seeks compliance in the "prescribed manner". .....

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tisfied 'prescribed manner' only on 30.01.2009 and not before that. 31. Now, rule framing authority in its wisdom requires deposit of tax and filing of return for January 2008 by September 2008, March 2008 by October 2008, April 2008 by November 2008, May 2008 by December 2008 and for the month of June 2008 since amendment by Ordinance was made by notification dated 16.07.2008, therefore, time was prescribed upto 31.07.2008. Unfortunately, rule framing authority completely missed and err .....

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that law does not require anyone to perform something which is impossible or improbable or cannot be performed by any person of ordinary prudence in the given facts and circumstances and situation. The Principal Legislature require compliance of deposit of tax by amended Section 42 of Act, 2008 vide amendment Act, 2008 in the manner prescribed. Delegated legislation acted and complied the requirement of "prescribed manner" by framing Rules laying down as to how and when tax shall be de .....

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ire compliance just impossible, valid law. There is a well known maxim, "Lex Non Cogit ad impossibilia" The law does not compel a man to do that which he cannot possibly perform. The other similarly recognized legal maxims are "Impotentia Excusat Legim" and "neon tenatur ad impossibilia." Where the law creates a duty, and the party is disable to perform it without any default in him and has no remedy over there, the law will excuse him. 34. The aforesaid doctrines h .....

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ara 8) 35. A Constitution Bench of seven Hon'ble Judges in Re: Presential Pool 1974 (2) SCC 33: (AIR 1974 SC 1682) held as under: "The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit and impossibilia. Impotenia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where t .....

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statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxim 10th Edition at PP. 162-163 and Craies on Statute Law 6th Ed. At p. 268)" (para 15) 36. In State of Rajasthan versus Shamsher Singh AIR 1985 SC 1082, Court, while considering a case under Notional Security Act, applied the aforesaid doctrine and held as under: "Mr. Jethmalani placed before us a passage from broom's Le .....

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thholding of the representation which resulted in non-compliance of S. 10 of the Act so as to vitiate the detention." (para 10) 37. Rajesh D. Darbar versus Narsing Rao Krishnaji Kulkarni & others (2003) 7 SCC 219, it was held: "The other maxim is, lex non cogit an impossibilia i.e. law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxim has been approved by this Court in Raj Kumar Dey v. Tarapada Dey : AIR 1987 SC 2195 Gurshara .....

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s "impotentia excusat legem" in common English acceptation means, the law does not compel a man to do that which he cannot possibly perform. There ought a always thus to be an invincible disability to perform the obligation and the same is akin to the Roman Maxim. "nemo tenetur ad impossibilia". (para 30) 39. A Constitutional Bench of Five Hon'ble Judges also considered the aforesaid maxim in Special Reference No. 1 of 2002 reported in AIR 2003 Supreme Court 1987 and held .....

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ere the law will in general excuse him". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of .....

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l of Cricket in India Vs. Netaji Cricket Club AIR 2005 SC 592, Court has again followed and approved the aforesaid maxim by referring to its earlier judgment in Rajesh D. Darbar, and said: "The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform........" (para 107) 41. In another judgment of Apex Court in HUDA and another Vs. Dr. Babeswar Kanhar 2005 (1) SCC 191 : AIR 2005 SC 1491 referring to certain English deci .....

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act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility (see Hossein Ally V. Donezelle 2.) Every consideration of Justice and expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not .....

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his nature, isolated from the actual realities and gaoss root problems involved in the workign of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or by law which would bring about the result of rendering the system uunworkable in practice". 43. We may add t .....

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in para 21, 22 and 28 said: "21. If of instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say parliament never intended to given authority to make such rules; they are unreasonable and ultra vires. 2 .....

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ate of U.P. And others Writ C No. 9513 of 1989. 47. In view of above exposition of law, when we look into the amended Rule 70(5) of Rule, 2008 as substituted by U.P. VAT (First Amendment) Rules, 2009, we find that rule framing authority, while framing a rule and enforcing the same on 30.01.2009, has required concerned units to deposit tax and submit return between July 2008 to December 2008 which is ex-facie irrational, unreasonable and improbable. When information by way of framing Rules is bei .....

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