TMI Blog2019 (4) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a recognition of the earlier certificate by the new Act. In the present case, certificate of entitlement was already granted by the Commissioner to the assessee on 10.11.2008, it was the subsequent exemption which was granted by the DLC and additional limit was increased by ₹ 6,48,78,870/- that the assess applied for amended certificate of entitlement. As, DLC has already forwarded the additional grant to the Commissioner, he could have exercised his power under Sub-section 9 of Section 42, which mandates him to amend the certificate of entitlement, and, in case he does not proceed to do so, the assess can file an application. The provisions of Section 42(3)(a) of the Act has to be read in harmony with sub-section (9) of Section 42 of the Act, as word 'may' occurs in sub Section 3(a) of Section 42 of the Act, while the word 'shall' has been incorporated by the Legislature in sub section (9) of Section 42, meaning thereby that the duty is cast upon the Commissioner to amend certificate of entitlement to those industrial units already having been granted the eligibility certificate under Section 4-A by the provisions of the Trade Tax Act, and also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 42 of the Act was granted on 10.11.2008. Subsequently the dealer/assessee made further investment in the unit and had applied for enhancement of exemption limit, as per notification issued by the State Government. Application so filed was allowed by the Additional Director Industries (DLC) on 13.2.2009 and additional limit was increased by ₹ 6,48,78,870/-. After the grant of eligibility certificate the dealer/assessee applied before the Deputy Commissioner/Joint Commissioner for issuance of Certificate of Entitlement and not before the Commissioner Commercial Tax as per Section 42 read with Rule 70 of the Act. It was on 18.4.2017 that dealer/assessee moved an application before the Commissioner for issuance of amended Certificate of Entitlement in pursuance of the Eligibility Certificate granted by the DLC on 13.2.2009. 6. On 26.6.2018 an application along with an affidavit for condonation of delay was moved by the assessee before the Commissioner. By an order dated 23.5.2017, the application for Certificate of Entitlement was rejected on the ground of delay. Against the said order an appeal was filed before the Commercial Tax Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under the erstwhile Act or notification issued thereunder; or (ii) an industrial unit purchased from the State Government or any corporation or undertaking owned or controlled by the State Government and to whom exemption or reduction in the rate of tax has been granted under the erstwhile Act, may apply to the Commissioner for issue of the Certificate of Entitlement in the prescribed form and in prescribed manner.] (4)........ (5)......... (6)......... (7)......... (8)......... (9) Where the amount or the period for exemption or reduction in the rate of tax changes on account of any valid reason otherwise, the Commissioner shall suo motu or on an application of the industrial unit, amend the certificate of entitlement accordingly. 10. Rule 2(b) of the U.P. Value Added Tax Rules, 2008 (hereinafter referred as the Rules ) defines Additional Commissioner as under: (b) Additional Commissioner means any person appointed by the State Government as Additional Commissioner of Commercial Taxes to perform the assigned to him and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) The State Government may by notification in the Gazette- (a) create or abolish the - (i) Zone of an Additional Commissioner; (ii) Region of a Joint Commissioner (Executive), a Joint Commissioner (Appeals); (iii) range of a Deputy Commissioner (Check Post), a Deputy Commissioner (Enforcement) or a Deputy Commissioner (Special Investigation Branch); and notify the circles or part of a circle or sector that are included in such zone, region or range, as the case may be. (b) specify the circles or part of a circle or a sector that are included in the jurisdiction of a member Tribunal. (2)............... (3)............... Rule 4 of the Rules provides for Authorities under the Act. It reads as under:- (1).......... (2).......... (3).......... (4)......... (5) The Commissioner shall exercise the powers and perform the duties assigned to him under the Act and the rules framed there under and shall have all powers exercisable by subordinate authorities other than the appellate aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the industrial unit may apply within 60 days from the end of assessment year in which such event has taken place requiring amendment or within 60 days from the date of publication of this rule whichever is later; PROVIDED ALSO that if the Commissioner is satisfied that there is sufficient cause which prevented the dealer to submit the application within the stipulated period, he may condone the delay in filing the application. (2) Before submitting the application under sub-rule (1) a copy of the application along with enclosures, if any, shall be served to the concerned assessing authority and certified copy of such receipt shall be annexed to the application. (3) The assessing authority shall, after examining relevant record and after giving the dealer a reasonable opportunity of being heard if necessary, send to the Commissioner a report in Form XLVI within a period of thirty days from the date of receipt of the application. (4).......... (5).......... (6).......... (7).......... (8).......... (9).......... (10)........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 42(3)(a) of the VAT Act, and it is covered under Section 42(9) of the Vat Act, which stipulates that where the amount or the period for exemption or reduction in rate of tax changes on account of any valid reason or otherwise, the Commissioner shall suo moto or on an application of the industrial unit, amend the certificate of entitlement. 14. In the present case, as the DLC had already granted the eligibility certificate on 13.2.2009 whereby additional benefit of ₹ 6,48,78,870/- was granted to the dealer, it was for the Commissioner to suo moto issued the amended certificate of entitlement to the respondent-assessee without waiting for any application. He further submitted that the order of the DLC had attained finality and copy of the same was already forwarded to the Commissioner, so it was only a routine exercise and the Commissioner should have granted amended certificate of entitlement, as no further adjudication was required, and it was just an endorsement of the decision taken on 13.2.2009. He further submitted that as far as the application filed before the Joint Commissioner on 25.2.2009 is concerned, Section 2(g) of the Act, which is the chargi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r statutory Corporation is concerned, no period is required to be fixed under the law. What is required is an allotment of land by issuance of a letter of allotment. Execution of a deed of lease may be a condition for grant of allotment but the grant is not subject to the date of lease or the period specified therein. The statutory rule as also the notification point out a clear distinction between a deed of lease which may be obtained from a private person and the letter of allotment granted by the State or statutory Corporation . The reason for making such a distinction is not far to seek. Whereas in the case of the former, a registered deed of lease is required to be executed if it is for a period of more than one year, in the latter it is not. 35. It is not a case where the application was incomplete by itself. It was also not a case where having regard to the provisions of the Act, Rules, Notifications as also the information required to be furnished in terms of paragraph 10 of Form 46, any other or further information was necessary to be obtained or furnished. If the appellant, thus, had fulfilled the eligibility criteria for grant of exemption, it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for issue of certificate of entitlement in prescribed form and in prescribed manner. The said provision of the Act nowhere restrict for any grant of certificate of entitlement to those industrial units already availing the benefit under Section 4-A of the Act nor it narrow down the scope for grant of such certificate by the authority so enumerated in the said provision. It only enable the said industrial unit to apply before such authority for the grant of entitlement certificate which is in form of extension of the earlier certificate so granted under the old Act or said to be a recognition of the earlier certificate by the new Act. 19. Argument of Sri Agarwal that the case of assessee/dealer is covered under Section 42(9) of the Act has force as sub-Section (9) categorically provides that the amount or the period for exemption or reduction in the rate of tax, the Commissioner shall suo moto or an application of the industrial unit amend the certificate of entitlement. Meaning thereby the duty is cast upon the Commissioner to suo moto exercise his power and grant amended certificate of entitlement, which is recognition of the earlier eligibility certificate grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no new unit would be established in the State due to uncertainty in the taxing statute. The Legislature was conscious of the fact, as such the provisions of Section 42 was incorporated so as to bring continuity and harmony between the old Act and the new Act, so that the benefit granted to any industrial unit in the State remains the same. 25. Thus, the argument of the learned standing counsel cannot be accepted to the extent that the Tribunal committed any error in directing for the grant of certificate of entitlement to the assesseedealer rejecting the finding recorded by the Commissioner as far as the delay in filing the appropriate application before him by the dealer. 26. It is not in dispute that the assessee/dealer after the grant of exemption certificate by the DLC on 13.2.2009, immediately applied for the grant of certificate of entitlement before the Joint Commissioner on 25.2.2009, and thereafter an application by the dealer before the Commissioner on 18.4.2017/9.5.2017 cannot be scored off on the ground of placing the same before the wrong forum, as the dealer had approached the Joint Commissioner within time and it was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy it should have deprived therefrom . 31. It is not in dispute that respondent-assessee is not entitled for eligibility certificate/certificate of entitlement, the only ground of rejection by the authorities are for moving the application beyond time, once the assessee had fulfilled all the criteria and was granted exemption by the DLC, no ground exists for denial of the same on the ground of limitation. 32. Further the Apex Court in case of State of Orissa and others Vs. Tata Sponge Iron Ltd., (2007) 8 SCC 189 held as under :- It is furthermore a well-settled principle of law that an exemption notification must be liberally constructed. (See Commercial of Customs (Imports) v. Tullow India Operations Ltd., Tata Iron Steel Co. Ltd. v. State of Jharkhand, Govt. of India v. Indian Tobacco Assn., CCE v. Hira Cement and P.R. Prabhakar v. CIT.) The said principle, therefore, applies on all fours in the present case. 33. In view of the above, I am of the opinion that the Tribunal had rightly directed the Commissioner to grant amended certificate of entitlement to the respondent-dealer, who is entitled for the same and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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