Decided on October 08,2007

Sumo Steels Pvt Ltd Appellant
Commissioner Of Trade Tax, Uttaranchal And Another Respondents


P.C.VERMA, J. - (1.)THIS revision under Section 11 of U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act) has been filed against the judgment and orders dated 31 -10 -2003 and 18 -10 -2004 passed by the respondent Nos. 1 and 2 respectively, by which the exemption granted to the Unit/revisionist by Joint Director (Industries), Pauri Garhwal through office memorandum No. 1907 -12 dated 09 -08 -2002 was cancelled
(2.)THE case of the revisionist, in brief is that the revisionist is a Private Limited Company and is engaged in manufacturing and sale of M.S Ingots. Prior to it, the earlier unit was being run in the name and style of M/s Vaibhav Steels Pvt. Ltd. In default of payment of loan borrowed by it from the U.P. Finance Corporation (U.P.F.C.), the U.P.F.C. proceeded under Section 29 of the State Financial Corporation Act and the unit was auctioned by the U.P.F.C. on "as is where is" and the revisionist purchased the same with the entire land, building, plant and machineries i.e. the composite unit for a consideration of Rs. 50.25 lacs. The earlier Unit M/s Vaibhav Steels Pvt. Ltd. was granted exemption for a period of 12 years from 29 -02 -1996 to 28 -02 -2008 under Section 4 -A of the Act. The eligibility certificate dated 21 -02 -2000 issued in this respect to M/s Vaibhav Steels Pvt. Ltd. has been annexed as Annexure - 2 to this writ petition. Under the provisions of Section 4 -A of the Act read with Rule 25 of the U.P. Trade Tax Rules a Divisional Level Committee has been prescribed to be an authority competent to grant exemption from trade tax by issuing eligibility certificate to the unit. The revisionist was assured while purchasing the unit that all the facilities which are available to the unit being owned by M/s Vaibhav Steels Pvt. Ltd. shall be applicable to the revisionist also. After taking possession of the unit from the U.P.F.C. the revisionist submitted an application for exemption from payment of trade tax for the remaining period and the Joint Director of Industries, who was also the convener of the Divisional Level Committee, issued an office memorandum dated 09 -08 -2002 granting the exemption to the unit for the. remaining period w.e.f. 06 -08 -2002. Having been provided the exemption from trade tax, the revisionist did not charge the full tax from the customers and only the portion of the tax as applicable was realized from the customers. The respondent No.1 issued a show cause notice dated 17 -02 -2003 in exercise of powers under Section 4 -A(3) of the Act to the revisionist and the revisionist submitted the reply to the said show cause notice on 26 -05 -2003 through his counsel, replying all the points raised in the show cause notice. It was also stated in the reply that the power of the Commissioner is confined only to the extent of Section 4 -A(3) of the Act and it cannot travel beyond that. After the receipt of the reply of the show cause notice, Commissioner, Trade Tax vide its order dated 31 -10 -2003 cancelled the order dated 09 -08 -2002 issued by the Joint Director (Industries), Pauri Garhwal.
(3.)THE revisionist preferred an appeal before the Trade Tax Tribunal against the order dated 31 -10 -2003 passed the Commissioner, Trade Tax on the ground that if the Commissioner Trade Tax was disagreed with the eligibility certificate, the only course open for the Commissioner was to prefer an appeal before the Tribunal or to refer the matter back to the State Level Committee as provided under Rule 25(3)(d) of the Rules within the time stipulated therein. In the appeal, the Tribunal granted the stay order in favour of the revisionist till the disposal of the appeal. The Tribunal dismissed the appeal of the revisionist, vide impugned order dated 18 -10 -2004 holding that the Commissioner has rightly exercised the powers under Section 4 -A(3) of the Act cancelling the exemption to the unit /revisionist.
Aggrieved by the impugned orders dated 31 -10 -2003 and 18 -10 -2004 passed by the respondent Nos. 1 and 2 respectively, the revisionist has come up in this revision. While admitting the revision, the following question of law was framed by this Court for consideration : -

"Whether the exemption which was granted to a unit, can be cancelled merely on ground of change of ownership of the unit -


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