FLOWMORE LIMITED Vs. STATE OF UP

JUDGEMENT

(1.) Challenging the order dated 26th of March, 2009 passed by the Deputy Commissioner, Sector-2, Commercial Tax, Ghaziabad, rejecting form 3D filed by the petitioner and holding that the petitioner is not entitled for concessional rate of tax, the present writ petition has been filed. Raising a small controversy this petition has been filed. We may notice the facts in brief. The petitioner, a company, is registered under both the U.P. Trade Tax Act, 1948 as well as the Central Sales Tax Act, 1956.

(2.) Its account books were accepted by the assessing authority for the relevant assessment year 2001-2002. However, the assessing authority did not grant the benefit of concessional rate of tax as claimed, as the requisite form 3D could not be submitted by the petitioner before the assessing authority during the course of assessment proceedings. This issue was taken up by the petitioner in first appeal and thereafter, in second appeal before the Tribunal. The Tribunal by the order dated 17th of April, 2008 passed in Appeal No. 167 of 2005 for the assessment year 2001-02 permitted the petitioner to place the form 3D on record and restored the matter back to the assessing authority to take the said form 3D as additional evidence on record and pass a fresh order in the light of the observations made in the order of the Tribunal. Thereafter, the matter was taken up by the assessing authority who by the impugned order has rejected the said form on the short ground that the U.P. Jal Nigam generally is a working agency for other Departments. The assessing authority took the view that in view of the section 3G(2) of the U.P. Trade Tax Act, 1948 the petitioner is not entitled to get the benefit of the said form, consequently lower rate of tax.

(3.) Heard Sri Ashok Kumar, learned counsel for the petitioner and Sri C.B. Tripathi, learned special counsel for the respondents. The learned counsel for the petitioner submits that undoubtedly the U.P. Jal Nigam is a corporation within the meaning of the U.P. Water Sewerage Tax Act, 1975. Elaborating the argument, it was submitted that the observation made by the assessing authority in the impugned order is totally unwarranted, perverse and against the material on record. Elaborating the argument, he submits that the U.P. Jal Nigam has to carry on number of functions, i.e., laying down pipe lines and providing water facilities to the residents of a locality. The submission is that the goods in question were two vertical water pumps and in absence of any material, it was wrongly assumed by the assessing authority that same were resold by the Jal Nigam. In the alternative, it was submitted that the form 3D was furnished by the U.P. Jal Nigam to the petitioner, the selling dealer. The said form was issued by the assessing authority of U.P. Jal Nigam and if there is any fault it lies with the U.P. Jal Nigam for which the petitioner cannot be held liable. Reliance was placed on Auto Sales, Allahabad v. Commissioner of Sales Tax,1991 UPTC 338 and Commissioner of Trade Tax v. Amba Prasad Jain & Co.,1998 12 NTN 106.