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M/s Triveni Sperry Sun Ltd. v. CTT - WRIT TAX No. 808 of 1999  RD-AH 954 (29 September 2004)
Civil Misc. Writ Petition No.809 of 1999
M/s Triveni Sperry Sun Ltd. v. The Commissioner,
Trade Tax, U.P., Lucknow and another
Hon'ble R.K.Agrawal, J.
Hon'ble Prakash Krishna, J.
(Delivered by R.K.Agrawal, J.)
By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ, order or direction in the nature of certiorari quashing the order dated 30.6.1999 passed by the Trade Tax Officer, Khatauli, Muzaffarnagar, respondent no.2, for the assessment year 1995-96 under the U.P. Trade Tax Act (hereinafter referred to as "the Act").
It appears that the petitioner had entered into an agreement on 30.3.1994 to lease certain equipment with M/s Triveni Engineering Works Ltd., now known as Triveni Engineering and Industries Ltd. Under the aforesaid agreement, the petitioner had given the boiler on lease. An assessment was framed by the respondent no.2 imposing tax under Section 3F of the Act treating it to be a case of transfer of right to use. In the appeal filed by the petitioner, the assessment order was set aside and the matter was remanded back to the Assessing Authority with certain directions to pass fresh order. Pursuant thereto, the respondent no.2 has passed the assessment order on 30.6.1999 once again imposing tax under Section 3F of the Act. The order dated 30.6.1999 is under challenge in the present writ petition.
The writ petition was filed in this Court on 2.9.1999 and on 7.9.1999 the Court had directed the Standing Counsel to file counter affidavit. The counter affidavit was filed on 16.12.1999. In paragraph 3(a) of the counter affidavit filed by Sri Chunni Lal, Trade Tax Officer, Khatauli, Muzaffarnagar, the plea of alternative remedy of appeal under Section 9 of the Act was also taken. The matter has been pending since then. It may be mentioned here that the respondents have raised a preliminary plea of maintainability of the writ petition regarding alternative remedy at the first instance. Even otherwise, the Apex Court in the case of Duncans Industries Ltd. v. State of U.P. and others, JT 1999(9) SC 421, has held that whether the machinery embedded in the earth can be treated as immovable or moveable property, depends upon the fact and circumstance of each case. In the present case, the petitioner's plea is that the boiler which has been leased out to M/s Triveni Engineering Industries Ltd., is embedded to earth and is, therefore, immovable property not liable to tax under Section 3F of the Act. This question depends upon the fact and circumstance of the case which can be easily gone into by the Appellate Authority under Section 9 of the Act. As the petition has not yet been admitted and a plea of alternative remedy has already been raised by the respondent, in view of the decision of the Apex Court in U.P. State Bridge Corporation Ltd. v. U.P.Rajya Setu Nigam S. Karmachari Sangh, (2004) 4 SCC 268, the Court declines to go into the merits of the case and instead directs the petitioner to avail the alternative remedy of appeal under Section 9 of the Act.
Accordingly, we decline to exercise the jurisdiction under Article 226 of the Constitution of India and relegate the petitioner to file an appeal under Section 9 of the Act before the Appellate Authority. If the appeal is filed within 30 days from today, the same shall be decided in accordance with law without raising any question of limitation.
The writ petition is dismissed on the ground of alternative remedy.
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