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BALAJI ENTERPRISES versus COMMISSIONER OF TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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Balaji Enterprises v. Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION DEFECTIVE No. 265 of 2004 [2005] RD-AH 660 (9 March 2005)

 

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.(265) of 2004

M/S Balaji Enterprises, Bareilly..             Applicant

Versus

Commissioner, Trade Tax, U.P. Lucknow.  Opp.Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 7th July, 2004 relating to the assessment year, 2000-2001.

It appears that during the year under consideration, applicant had sold Soya refined oil to M/S Vardhaman Industries Ltd., Saharanpur alleged to be manufacturer of vanaspati ghee and was under the compounding scheme under section 7-D of the Act. Exemption on such sale was claimed under the notification No. KA.NI-2-3028/XI-7(21)/86-U.P. Act-15-48-Order-(33)-2000 dated September 25, 2000. Claim of exemption was refused on the ground that the certificate required under the notification has not been filed before the assessing authority and before the appellate authority. It appears that some proforma or certificate was filed  before the Tribunal. Tribunal has not allowed the claim of exemption on the ground that the applicant was not able to how that why certificate could not be obtained from the party and certificate was not in a proforma prescribed under the notification.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the certificate which was filed, fulfills the requirement contemplated in the proforma of certificate prescribed under the notification and, therefore, the exemption should be allowed on the basis of such certificate. He submitted that by the time of assessment, certificate could not be obtained. The said certificate was subsequently obtained  but inadvertently  it was lost by the Advocate. Learned Standing Counsel submitted that proforma of certificate for the claim of exemption is provided in the notification itself and therefore, it is mandatory and unless certificate as prescribed under the notification is filed,  benefit of exemption cannot be allowed, in support of his claim, he relied upon the decision of the Apex Court in the case of Commissioner of Sales Tax Versus Prabhu Dayal Prem Narain, reported in 1988 UPTC, 1204, in the case of Delhi Automobiles (P) Ltd., Delhi Versus Commissioner of Sales Tax reported in 1997 UPTC 225. In a recent judgment in the case of M/S India Agencies (Regd) Bangalore Versus Additional Commissioner of Commercial Taxes, Bangalore report in JT 2005 (1) SC, 16.

In my opinion, there is no force in the argument of the learned counsel for the applicant.  Notification reads as follows:

(218)

Regarding exemption on raw material etc. to

      Vanaspati Ghee Manufacturing Unit

       KAR EVAM NIBANDHAN ANUBHAG-2

The Governor is pleased to order the publication of the following English translation of Government Notification No. KA.NI-2-3028/XI-7(21)/86-U.P. Act-15-48-Order-(33)-2000 dated September 25, 2000 for general information.

NOTIFICATION

No. KA.NI-2-3028/XI-7(21)/86-U.P. Act-15-48-Order-(33)-2000 dated September 25, 2000

In exercise of the powers under clause (c) of Section 4 read with section 25 of Uttar Pradesh Trade Tax Act, 1948 (U.P. Act no. XV of 1948 the Governor is pleased to exempt, with effect from April 1, 2000, the payable under the said Act, on the sale of paddy husk for use as fuel, materials, packing materials, and consumable store to unit manufacture Vanaspati Ghee in Uttar Pradesh, for manufacturing or packing as the case may be, of Vanaspati Ghee during the assessment year 2000-2001 or thereof for which they have paid composition money under section 7-D of the said Act. The manufacturing unit shall issue a certificate  to selling dealer of such goods in duplicate in the proforma given below and shall keep one copy of such certificate for its own record.

PROFORMA OF CERTIFICATE

CERTIFIED THAT M/s. (Name and address of the manufacturing unit)..............................Whose trade tax registration no. is ...............has purchased paddy husk for use as fuel, raw material, packing and consumable stores for Rs. (in words)...............................from M/s (Name and address of selling dealer)..............................Whose registration no. is .......................has purchased paddy husk for use as fuel, raw material, packing material and consumable stores for Rs. (in words)......................from M/s. (Name and address of selling dealer)..............................Whose registration is...........................for manufacturing or packing, as the case may be, of Vanaspati Ghee during the assessment year 2000-2001 or part thereof for which I have paid composition money under section 7-D of the Uttar Pradesh Trade Tax Act, 1948.

The details of purchase of paddy husk, raw materials, packing materials, and consumable stores

Bill No.   Date     Name of goods     Sale/Purchase price         Quantity

1       2       3     4      5

This certificate has been issued under notification no.KA.NI.2-3028/XI-7(21)/86-U.P. Act 15-48-Order (33)-2000, dated, September 25, 2000.

The above contents are true to the best of my knowledge and belief.

Signature.................................

(Proprietor/partner or authorised signatory)

Name and address of purchasing dealer.......

......................................................."

In the case of Commissioner of Sales Tax Versus Prabhu Dayal Prem Narain, (supra), apex court held that for the claim of exemption, filing of required certificate is mandatory. In the Case of Delhi Automobiles (P) Ltd., Delhi Versus Commissioner of Sales Tax ( supra), Apex Court held that the benefit of concessional rate of tax cannot be allowed on the basis of photostate copy of Form-C and in recent judgment in the case of M/S India Agencies (Regd) Bangalore Versus Additional Commissioner of Commercial Taxes, Bangalore(supra), Apex Court denied the benefit of concessional rate of tax on the basis of copy of Form C marked as duplicate in the absence of original copy.

In view of the aforesaid decisions, unless certificate as contemplated under the notification is filed, benefit of concessional rate of tax cannot be allowed. Admittedly, applicant could not file certificate as provided under the notification.

In the result, revision fails and is, accordingly, dismissed.

Dated. 09.03.2005

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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