RAI BAREILLY FLOUR MILLS Vs. TRADE TAX TRIBUNAL

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India. By means of this petition a writ, order or direction in the nature of certiorari for quashing the order dated May 5, 2003 passed by the Sales Tax Tribunal, Ghaziabad, Bench II, (respondent No. 1) (annexure No. 11 to the writ petition) and the order passed by the Assistant Commissioner (Assessment), (respondent No. 2), Trade Tax, Bulandshahar, dated July 15, 2002 for the assessment years 1995-96 and 1996-97 (annexures Nos. 7 and 8 to the writ petition), has been prayed for. Further a writ of mandamus has been sought for directing the respondents to set aside the orders for assessment years 1995-96 and 1996-97 in accordance with section 30(3) of the U.P. Sales Tax Act, 1948 and to refund the amount of Rs. 1,49,604 for the assessment year 1995-96 and Rs. 12,45,416 for the assessment year 1996-97 in view of grant of eligibility certificate dated May 25, 2000.

(2.) The factual matrix of the case is that the petitioner is a registered dealer under the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") and carries on the business of manufacture and sale of atta, maida and suji. It claimed itself a new unit within the meaning of Section 4-A of the Act and applied for the grant of eligibility certificate, granting exemption from payment of trade tax. The eligibility certificate was ultimately granted on May 25, 2000 by the Divisional Level Committee vide annexure No. 3 to the writ petition. The said eligibility certificate has been granted for the period January 16, 1995 up to January 15, 2004. During the pendency of the application for grant of the eligibility certificate the assessing authority vide its order dated March 31, 1998, imposed a tax liability of Rs. 15,06,290.88. Similarly for the assessment year 1996-97 it created a tax liability of Rs. 40,26,754 vide order dated May 27, 1999. These orders were challenged before the first appellate authority, who ultimately reduced the tax liability for the assessment year 1995-96 but the appeal for the assessment year 1996-97 was allowed and remanded to the assessing authority vide order dated July 9, 1999. The petitioner challenged the two orders passed by the first appellate authority in respect of both the assessment years, by filing appeals before the Trade Tax Tribunal. The Trade Tax Tribunal decided both the appeals. It granted further relief of Rs. 23,125 for the assessment year 1995-96 vide its order dated January 6, 1999. For the next assessment year, i.e., 1996-97 vide order dated January 13, 2000 the Tribunal reduced the tax liability to Rs. 34,57,254. The eligibility certificate was ultimately granted by the Divisional Level Committee after the aforesaid two orders of the Tribunal for the assessment years 1995-96 and 1996-97. Thus the petitioner became entitled for the refund of the tax deposited in pursuance of the assessment orders for the assessment years 1995-96 and 1996-97 as modified by the Tribunal in the light of the eligibility certificate.

(3.) Armed with the eligibility certificate the petitioner filed two applications both dated February 13, 2001 before its assessing officer for refund of tax deposited by it with the allegation that the tax was not realised from the customers and the same was deposited by the petitioner-company out of its own pocket. True copies of these applications have been filed as annexures Nos. 4 and 5 to the writ petition. The assessing authority, the respondent No. 2, by two identical orders both dated July 15, 2002 (annexures 7 and 8) rejected the two applications filed under Section 30(3) of the Act on the ground that the original assessment orders in respect of the relevant assessment years are no longer in existence as they have been merged into the orders passed by the first appellate authority as well as in the Tribunal's orders. Thereafter, the petitioner filed the applications under Section 30(3) of the Act before the Tribunal in the two second appeals filed by it earlier for the assessment years 1995-96 and 1996-97. These applications have been dismissed by the Tribunal by the impugned order dated May 5, 2003 (annexure No. 11 to the writ petition) on the ground that the applications filed under Section 30(3) of the Act were time barred as they were not filed within the period of one year from the date of grant of the eligibility certificate. The applications were filed on August 8, 2002 while the eligibility certificate was issued on May 25, 2000 and was received on June 20, 2000. There was delay of one year, one month and eight days. Challenging the aforesaid orders the present writ petition has been filed.