DEKI ELECTRONICS LIMITED Vs. COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 12.04.2004 passed by the Full Bench of the Trade Tax Tribunal, Lucknow.

(2.) Brief facts of the case are that the applicant established a new unit for the manufacturing of metalised film capacitors at D-9, Sector-10, Noida and applied for exemption under Section 4-A of the Act. Exemption was allowed and eligibility certificate was issued on 13.08.1997 under Section 4-A of the Act granting the exemption from tax on the fixed capital investment of Rs. 58,14,000/- to the extent of 100% or for a period of eight years commencing from 24.10.1994, whichever expired earlier. Subsequently, at the instance of the applicant, said eligibility certificate was amended vide letter No. 1214 dated 14.09.2001 and the period of eight years amended from 24.01.1995 to 23.01.2003, Thereafter, the unit shifted its establishment from D-9, Sector-10, Noida to B-20, sector-58, Noida It appeal's that after grant of the exemption, some old machines have also been installed. During the course of the assessment proceedings for the assessment year 1998-99, it came to the notice of the assessing officer that the information about the shifting of the unit was not given. Thereafter, applicant moved an application on 24.12.2001 for the change of the address before the Divisional Level Committee. The said application was considered by the Divisional Level Committee in its meeting dated 28.09.2002 and rejected the same on the ground that no permission was taken for the change of the place from Industry Department and the application for change of address was not given on a prescribed proforma and the old machines were installed at B-20, Sector-58, Noida and the other goods were also being manufactured. Applicant filed a review application dated 19.10.2002, which was considered by the Divisional Level Committee in its meeting on 21.11.2002 and the application for the change of place was allowed on the ground that new place was inspected by the Industry Department vide letter No. 2578 dated 20.03.2002 and list of the machines were certified which shows that the unit had taken the permission from Industry Department before the change of place and the information in an application in the prescribed proforma was only a technical mistake. Divisional Level Committee was also of the view that the unit had not claimed any exemption on the turn over of goods produced by the old machines and these alleged old machines were installed alter the grant of exemption certificate and the items exempted were not produced by these machines. In coming to the aforesaid conclusion Divisional Level Committee relied upon the decision of this Court in the case of Superlite Engineering, Meerut v. CIT, reported in STI, 2000, Alld. High Court, 367 and Mansarowar Bottling Company Limited v. CTT, reported in 1999 NTN (Vol. 14), 644 in which it was held that if the place of business is changed after the grant of certificate, it does not effect the certificate issued under Section 4-A of the Act. Consequently, Divisional Level Committee allowed the review application and approved the original certificate as amended on 14.09.2001.

(3.) Feeling aggrieved by the aforesaid order of the Divisional Level Committee, Commissioner of Trade Tax filed appeal No. 62 of 2003 under Section 10 of the Act before the Tribunal. Tribunal by the impugned order allowed the appeal. Tribunal held that Divisional Level Committee had concluded, on the basis of the certificate made by the officer of the Industry Department and the list of the machines certified on 20.03.2002, that the permission was given by the Industry Department for the change of place from D-9, Sector-10, Noida to B-20, Sector-58, Noida, is not correct. According to the Tribunal, perusal of the original application as given by the unit on 24.12.2001 shows that it was only for the change of address in the eligibility certificate. In this application, it has been mentioned that they had shifted their manufacturing unit from plot No. D-9, Sector-10, Noida to their own plot at B-20, Sector-58, Noida and the request was made to change the address of the unit and necessary endorsement in the original eligibility certificate, which was also enclosed alongwith the application. Tribunal was of the view that perusal of the application shows that no request was made for permitting them to change the place of business and further, record also shows that application dated 11.12.2001 was filed by the unit requesting General Manager, District Industries Centre, Noida for getting machines inspected as installed in the factory premises at B-20, Sector-58, Noida as the unit had to apply for the term loan in lieu of Trade fax, under the deferment scheme to IMCUP. The unit had also enclosed the list of machines to be verified and it appears that on that application, the verification of the machines was done by the Industries Department, as mentioned by the Divisional Level Committee. Tribunal accordingly held that the verification made by the Industries Department could not be treated as the permission by the Industries Department to the unit before the change of place of business. However, it has been accepted by the Tribunal that a legally unit was not required to seek any prior permission for the change of place of business, but has to inform. Tribunal further observed that in the original certificate under Section 4-A of the Act, exemption was granted to a new unit, manufacturing the some items at a particular place. The place, where the unit is to be established shifted has its importance not only district wise but even unit established at adjacent plot can effect the nature of eligibility certificate, therefore, non-compliance of the condition by the dealer was material. Tribunal has also accepted the submission of the Learned State Representative that the review application was not maintainable under Rule 25(3) (c) of the U.P. Trade Tax Rules, 1948, in as much as rule provide the review against the rejection of the exemption application within thirty days and the rejection of application for change of address in the certificate, already granted, can not be treated as order refusing to grant eligibility certificate. Tribunal held that the Divisional Level Committee had no jurisdiction or authority to consider the review application given by the unit, and impugned order was without jurisdiction. Tribunal finally held that the Divisional Level Committee had wrongly allowed the review application without any jurisdiction and the impugned order being void abinitio is liable to be set aside and accordingly, allowed the appeal.