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Allahabad High Court · body

2008 DIGILAW 1518 (ALL)

UNIQUE POLYPACK v. COMMISSIONER, TRADE TAX, U. P.

2008-08-04

PRAKASH KRISHNA

body2008
JUDGMENT PRAKASH KRISHNA, J. - The present revision is at the instance of dealer questioning the legality and validity of the order passed under section 4A(3) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") which has been confirmed by the Tribunal in Second Appeal No. 24 of 1998 by the order under revision whereby and whereunder the Tribunal has held that the dealer has failed to place any material on record to show that its new unit was not closed for a period of more than six months. The facts are not much in dispute. The dealer, a new unit, was granted an eligibility certificate which was issued on March 5, 1997 for a period of three years commencing from March 29, 1985 to May 28, 1988. Its unit was closed during the assessment year 1987-88 for various reasons including curfew for a part of the year. In the survey dated September 6, 1988 which is the basis of the impugned orders, it was admitted by one of partners of the unit before the surveying officer that the production in the unit has stopped since April, 1987. On the basis of the aforestated survey report, the authority concerned initiated proceedings under section 4A(3) of the Act for cancellation of the eligibility certificate on the ground that the unit was closed at a stretch for a period of six months and this fact has disentitled the dealer to claim exemption from payment of tax and has lost the right for continuance of the eligibility certificate. In reply to the show-cause notice issued by the Commissioner, Trade Tax, U.P., Lucknow, only this much was submitted that there was a curfew in Meerut from May 23, 1987 to September 6, 1987 with the result the factory was closed under compelling circumstances. Thereafter, the production work was resumed in the month of October. Shri Devendra Singh, the partner who was present at the time of survey dated September 6, 1988 was not well acquainted with the facts and as such he could not give the correct details to the surveying officer. Thereafter, the production work was resumed in the month of October. Shri Devendra Singh, the partner who was present at the time of survey dated September 6, 1988 was not well acquainted with the facts and as such he could not give the correct details to the surveying officer. It may be noted that after filing of the reply to the above show-cause notice, the authority concerned, i.e., the Deputy Commissioner (New Unit), Trade Tax, U.P., Lucknow asked the dealer to substantiate the allegations made in the reply to the show-cause notice by producing the relevant material before him. Noticeably, opportunity after opportunity were afforded but the dealer for the reasons best known to it chosen not to participate in the proceeding nor did he file any material to substantiate the defence as set out in the reply to the show-cause notice. The case was adjourned, as has been noticed by the authority concerned on 17 occasions to accommodate the dealer to come and substantiate his allegations, but all in vain. By the order dated July 7, 1997 the authority concerned was left with no other option but to treat the facts as found in the survey dated September 6, 1988 as correct in absence of any contrary material and it consequently cancelled the eligibility certificate for the remaining period with effect from April 1, 1987. The said order has been confirmed by the Tribunal by the order under revision and in my view, rightly. It could not be disputed by the learned counsel for the applicant that sufficient opportunity of hearing was not afforded to the dealer by the authorities below including the Tribunal. Much emphasis was laid by him that the eligibility certificate could not be cancelled after the period of expiry, has got no force. Law has been amended retrospectively as has been noticed by the authority concerned in the impugned order. The learned counsel could not place any material before this court to take a different view. Neither there is equity nor law in favour of the dealer - applicant. Absolutely, no plausible reason has been shown by the dealer as to why it did not participate in the proceedings giving rise to the present revision before the authority concerned. Whether the unit was or was not closed for a period more than six months in the given case, depends on evidence. Absolutely, no plausible reason has been shown by the dealer as to why it did not participate in the proceedings giving rise to the present revision before the authority concerned. Whether the unit was or was not closed for a period more than six months in the given case, depends on evidence. In the absence of any contrary material, the Uncontroverted survey report dated September 6, 1988 is a valid piece of evidence against the applicant - dealer. The finding, thus, based on it is perfectly legal and justified. There is no merit in the revision. The revision is dismissed.