P.K.Jain, J. - (1.) The revisionist applied for grant of eligibility certificate under Section 4-A of the U.P. Trade Tax Act, 1948 (hereinafter called as, "the Act") in respect of total investment of Rs. 73,25,000. The revisionist claimed that its unit was a new one. The Divisional Level Committee granted eligibility certificate on June 10, 1995 which was effective from May 6, 1995 only with regard to the investment of Rs. 9,40,000. Aggrieved by the order of the Divisional Level Committee rejecting the claim in respect of remaining fixed capital investment the dealer filed appeal before the Tribunal. The Tribunal has dismissed the appeal, hence this revision is filed by the dealer.
(2.) It is not disputed that the unit which the dealer claims to be a new unit was purchased by it from U.P. Financial Corporation in 1994. The dealer's claim is that the date of first sale by the revisionist was June 10, 1994. The dealer claimed that fixed capital investment in respect of land and building was Rs. 25,97,000 and in respect of plant and machinery it was Rs. 47,28,000. The Divisional Level Committee allowed the claim in respect of land and building only to the extent of Rs. 9,25,000 on the ground that up to the date of first sale the dealer had paid only Rs. 8,81,000 for the land and balance for registration of the land and building in favour of the dealer. It appears that total amount of Rs. 1,75,000 was paid as registration charges ; but the exemption in respect of the entire registration charges was not allowed on the ground that part of it related to plant and machinery installed in the premises. The balance amount of fixed capital investment in respect of land and building was not allowed on the ground that the payment was to be made in instalments after the date of first sale. As regards the fixed capital investment of Rs. 47,28,000 the Divisional Level Committee as well as the Tribunal were of the view that these were old plant and machinery and in view of the definition of the new unit investment with regard to such old plant and machinery cannot be included in fixed capital investment.
(3.) Submission of Sri Bharat Ji Agrawal, learned Senior Counsel, is that both the Divisional Level Committee as well as the Tribunal has misdirected itself so far as the question of "new unit" is concerned. Explanations (1) and (2) to Section 4-A define "new unit" and make a distinction between the new units which were established during the period ending with March 31, 1990 and new units established after March 31, 1990. Definition of the new units which were established on or before March 31, 1990 provided that such unit means a unit using machinery, accessories, components not already used or acquired for use in any other factory or workshop in India whereas the. definition of new unit after March 31, 1990 though states that the new unit does not include any factory or workshop using machinery, plant or equipment, apparatus, components already used or acquired for use in any other factory or workshop in India ; but it includes factory, workshop, etc., sold to it by any Government company or any corporation owned or controlled by the Central or State Government. Submission of Sri Bharat Ji Agrawal is that the unit in question was established after March 31, 1990 and was purchased by the revisionist in the year 1994 from the U.P. Financial Corporation which is controlled by the State Government. Therefore, the exclusion clause as provided in Explanation (2)(a) in respect of machinery, etc., already used or acquired for use in any other factory shall not be applicable to the case of the revisionist. Both the Tribunal as well as the Divisional Level Committee have not considered the distinction of the two definitions of the new units contained in Explanation (1)(d) and Explanation (2)(a) of Section 4-A. Sri B.K. Pandey, learned Standing Counsel, has submitted that so far value of fixed capital investment in building is concerned, only part payment was made till the date of first sale. In view of provisions contained in Section 4-A only the investment made till the date entitlement to grant of facility can be considered. In respect of the balance amount the exemption cannot be granted. He has also submitted that so far as the question of grant of exemption in respect of plant and machinery is concerned, the matter requires to be reconsidered by the Tribunal in the light of distinction between the two definitions of Explanation (1)(d) and Explanation (2)(a).;