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TRAMBAKAM FLOUR MILLS PVT. LTD versus COMMISSIONER TRADE TAX

High Court of Judicature at Allahabad

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Trambakam Flour Mills Pvt. Ltd v. Commissioner Trade Tax - SALES/TRADE TAX REVISION No. 1142 of 2003 [2006] RD-AH 4401 (23 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no.55

TRADE TAX REVISION NO.1142 of 2003

AND

TRADE TAX REVISION NO.1143 of 2003

AND

TRADE TAX REVISION NO.1144 of 2003

AND

TRADE TAX REVISION NO.1145 of 2003

Trambakam Flour Mills, Pvt. Ltd., Durga Kund, Varanasi.       Applicant

Versus

The Commissioner, Trade Tax, U.P., Lucknow.                Opp.party

...............

Hon'ble Rajes Kumar, J.

Present four revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 18th August, 2003 relating to the assessment years, 1994-95 and 1995-96, both under the U.P. Trade Tax Act and Central Sales Tax Act.

Applicant is a roller flourmill engaged in the manufacturing of Atta, Maida, Suji and bran. It is registered under the U.P. Trade Tax Act and Central Sales Tax Act. Its unit being a new unit under section 4-A of the Act has been granted an eligibility certificate by the Divisional Level Committee granting exemption from payment of tax for the period 1.2.1995 to 31.1.2005. As per the eligibility certificate, the applicant was entitled to the benefit of tax upto the maximum monetary limit of Rs.2,78,54,659.50 being 150 percent of the fixed capital investment. Applicant being a manufacturer is also holding recognition certificate under section 4-B of the Act. Under the notification issued in exercise of powers under section 4-B of the Act, applicant was liable for the benefit of concessional rate of tax and was liable to pay tax on wheat at the rate of two percent on furnishing of Form III-B. Applicant claimed that the wheat were purchased against Form III-B on payment of two percent tax.

Under the Notification No. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 issued in exercise of powers under section 3-A of the Act, Atta, Maida and Suji manufactured from wheat on which tax had been paid under the U.P. Trade Tax Act was liable to tax in the hands of importer or manufacturer at the rate of two percent. Under Entry 7 (a) of the aforesaid notification, it was further provided that Atta, Maida and Suji not covered by entry (a) was liable to tax in the hands of manufacturer or importer at the rate of four percent, in addition to the aforesaid liability of tax, applicant was liable to pay additional tax at the rate of 0.5 percent.

Likewise, Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993 has been issued in exercise of powers under sub-section (5) of Section 8 of the Central Sales Tax Act. Under the aforesaid notification, Atta, Maida and Suji manufactured out of wheat purchased from within the State of U.P. was exempted from tax provided the selling dealer proves to the satisfaction of the assessing authority that the tax on the purchases of wheat had been paid under the U.P. Trade Tax Act or if the declaration form prescribed under the said Act obtained from the dealer from whom the said wheat was purchased by the aforesaid selling dealer is furnished to the assessing authority upto the time of the assessment.

Claim of the applicant is that it had manufactured Atta, Maida and Suji out of the wheat on which tax at the rate of 2 percent was paid being holder of the recognition certificate and, thus, in view of the Notification No. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 issued in exercise of powers under section 3-A of the Act manufactured Atta, Maida and Suji was liable to tax at the rate of two percent under the U.P. Trade Tax Act and in view of Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993 issued in exercise of powers under section  8(5) of the Central Sales Tax Act, turnover of Atta, Maida and Suji was exempted from tax under the Central Sales Tax Act. The aforesaid claim of the applicant was refused by the assessing authority on the ground that both the aforesaid notification nos. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 and Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993 are applicable in a situation when tax on the full rate had been paid on wheat and not at the concessional rate of tax. The benefit of the aforesaid two notifications have accordingly, been denied both under the U.P. Trade Tax Act and Central Sales Tax Act. First appeals filed by the applicant before the Deputy Commissioner (Appeals) have been dismissed. Applicant filed second appeals before the Tribunal. Tribunal by the impugned order, dismissed all the appeals.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that under the aforesaid two notification nos. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 and Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993, tax paid means tax paid in accordance to the provisions of the Act as per the notification. He submitted that the tax paid at the rate of two percent under the notification issued in exercise of powers under section 4-B of the Act was the tax payable under the provisions of the Act and, thus, it should be considered as tax paid for the purposes of the aforesaid two notifications. Learned Standing Counsel relied upon the order of the Tribunal.

I find substance in the argument of the learned counsel for the applicant. It is useful to refer the relevant notifications.

[S.No.261]

No.TT-2-1623/XI-7(159)/91 U.P.Act-15-48-Order-94

Lucknow : Dated : May 21, 1994.

In exercise of the powers under section 4-B of Uttar Pradesh Trade Tax Act, 1948 (U.P. Act no.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No.1 of 1904) and in supersession of all the previous notifications issued under the said section 4-B, the Governor is pleased to declare that with effect from June 1, 1994 and subject to condition and restriction specified in the said section 4-B, the tax shall be payable at the rate of 2 per cent on the sale to or as the case may be purchase by a dealer holding a valid recognition certificate under sub-section (2) of the said section 4-B, of any raw material, processing material, consumable stores, machinery, plant, equipment, spare parts, accessories, components, fuel or lubricants required by him for use in the manufacture of goods or of any goods required for use in the packing of goods manufactured by him:

Provided that no concession under this notification shall be admissible in respect of sale to or purchase by distilleries and breweries.

[S.No.266]

No.TT-2-1902/XI-9(6)-94 U.P.Act-15-48-Order-94

Lucknow : Dated : May 31, 1994.

[ Published in the U.P. Gazette, Extra, Part 4 Section (Kha),

dated 1st June, 1994 ]

In exercise of the powers under the proviso to clause (e) sub-section (1) of Section 3-A of Uttar Pradesh Trade Tax Act, 1948 (U.P. Act no.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No.1 of 1904), the Governor is pleased to make with effect from June 1, 1994, the following amendment in Government Notification NO.ST-2-5785/X-10(1)-80-U.P.Act-XV-48, dated September 7, 1981 (S.No.4) as amended from time to time:

AMENDMENT

In the list of the aforesaid notification:-

For the existing entry at Serial Number 7, the following entry shall, columnwise, be substituted, namely:

LIST

Serial No. Description of goods Point of tax Rate of tax

1 2 3 4

7 (a) Atta, Maida and Suji manufactured from the Wheat on which tax has been paid under the U.P. Trade Tax Act, 1948. Manufacturer or importer 2 per cent

(b) Atta, Maida and Suji not covered by sub-item (a) above. Manufacture or importer 4 per cent.

[ S.No.230]

No.ST-2-1009/XI-9(50)93-Act-74-56-Order-93, dated 31 March, 1993

WHEREAS, the State Government is satisfied that it is necessary so to do in public interest;

NOW, THEREFORE, in exercise of the powers under sub-section (5) of section 8 of Central Sales Tax Act, 1956 (Act no.74 of 1956), the Governor is pleased to declare that no tax shall be payable by the dealer having his place of business in the State of Uttar Pradesh in respect of sales in the course of inter State trade and commerce from any such place of business of Atta, Maida and Suji manufactured by him subject to the following conditions-

(1) If Atta, Maida, Suji is manufactured out of the wheat purchased from within the State of Uttar Pradesh.

(2) If selling dealer proves to the satisfaction of the assessing authority that the tax on the purchase of wheat has been paid under the Uttar Pradesh Sales Tax Act or if the declaration from prescribed under the said Act obtained from the dealer from whom the said wheat was purchased by the aforesaid selling dealer is furnished to the assessing authority upto the time of assessment.

Section 4-B starts with notwithstanding anything contained in sections 3-A, 3-AAAA and 3-D of the Act. Thus, it has overriding effect over the aforesaid sections. The tax paid under the notification issued in exercise of powers under section 4-B of the Act is a tax paid under the U.P. Trade Tax Act. Perusal of the Notification no. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 and Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993 shows that they only provided that the tax under the U.P. Trade Tax Act should be paid. Both the notifications have not said that the tax at the full rate should be paid. In my opinion, tax paid under the notification issued under section 4-B of the Act is tax paid under the U.P. Trade Tax Act and the benefit of Notification no. TT-2-1902/XI-9-(6)-94-U.P. Act-15-48-Order-94, dated May 31, 1994 issued in exercise of powers under section 3-A of the Act and the Notification No. ST-2-1009/XI-9 (50) 93-Act-74-56-Order-93, dated 31 March, 1993 issued in exercise of powers under section 8 (5) of the Central Sales Tax Act are applicable to the applicant. The applicant is accordingly liable to tax and exemption under the aforesaid two notifications both under the U.P. Trade Tax Act and Central Sales Tax Act respectively.

In the result, all the four revisions are allowed. Order of the Tribunal is set aside. Tribunal is directed to pass appropriate orders under section 11 (8) of the Act.

Dated.23.02.2006.

VS.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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