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2009 DIGILAW 3198 (ALL)

D. B. F. BRICKS FIELD v. STATE OF U. P.

2009-10-05

PRAKASH KRISHNA, SUBHASH CHANDRA NIGAM

body2009
JUDGMENT These two writ petitions were heard together and are being disposed of by a common judgment, as was jointly agreed by the learned counsel for the parties. In Writ Petition No. 717 of 2000 the dispute relates to the period October 1, 1995 to September 30, 1996. While in the connected Writ Petition No. 718 of 2000 the dispute relates to the period October 1, 1994 to September 30, 1995. Writ Petition No. 718 of 2000 was considered as the leading case. The petitioner, a brick-kiln owner, has challenged the validity of the order dated August 23, 1998 passed by the Trade Tax Officer rejecting the petitioner's application for composition under section 7D of the U.P. Trade Tax Act, 1948 and making assessment and imposing tax under section 7(3) read with section 18 of the U.P. Trade Tax Act by the order dated February 8, 1999. The facts of the case may be noticed in brief. The State Government under section 7D of the U.P. Trade Tax Act floated a compounding scheme for payment of trade tax, for the benefit of brick-kiln owners. In pursuance of the said scheme, the petitioner filed a requisite application on September 30, 1995 and deposited certain amount as required therein. The said application has been dismissed by the impugned order as barred by time. Challenging the said order and consequential order of demand, the present writ petition has been filed. A copy of the said scheme has been annexed as annexure 1 to the writ petition. Its clause 6 provides that an application on the prescribed form for claiming the benefit can be filed before the assessing officer by February 15, 1995. However, the said application can be filed by April 30, 1995 on condition of deposit of late fee at the rate of two per cent per month towards the interest due from February 15, 1995 on the specified amount. Noticeably, in the present case, the petitioner did not file the said application on or before April 30, 1995. The application was filed on September 30, 1995. Similarly, in the connected writ petition also, the application under the scheme was not filed either within the prescribed period or within the extended period on payment of interest, etc. Noticeably, in the present case, the petitioner did not file the said application on or before April 30, 1995. The application was filed on September 30, 1995. Similarly, in the connected writ petition also, the application under the scheme was not filed either within the prescribed period or within the extended period on payment of interest, etc. The sole contention of the petitioner is that the delay in filing the applications claiming the benefit of the composition scheme be condoned by charging interest at two per cent per month. In other words, the time prescribed under the said scheme for filing the application be further extended by this court on the principle of section 5 of the Limitation Act. The sole point involved in the present case, therefore, is whether on the principle of section 5 of the Limitation Act court can further extend the prescribed period of limitation for filing an application under the said scheme floated under section 7D of the Act. The said point is no longer res integra and has been set at rest in the case of Saket Bricks Traders, Gorakhpur v. Additional Commissioner (Legal), Trade Tax [2001] UPTC 332. It has been held therein that the provisions of the Limitation Act are not incorporated in the Trade Tax Act by Legislature and as such the principle of condonation of delay in filing an application cannot be read in the said scheme. The learned counsel for the petitioner could not point out any distinction so as not to attract the principle laid down therein. In our considered opinion, the controversy involved in the present writ petitions is squarely covered by the aforesaid decision of this court. In view of the above discussion, both the writ petitions are hereby dismissed.