BHARATI SAPRU,J. - (1.) HEARD Sri Bharat Ji Agrawal learned senior counsel appearing on behalf of the revisionist assessee and Sri B.K. Pandey learned standing counsel for the department.
(2.) THIS revision under section 11 of the U.P. Trade Tax Act has been filed by the assessee against the order passed by the tribunal dated 14.5.2002. The questions of law referred are as under: ?(i) Whether in a large beverages manufacturing unit having high speed automatic machines and manufacturing aerated beverages or marketing in consumer convenient glass bottles, running of the factory or workshop is impossible unless such glass bottles and shells are used simultaneously in the machine itself for filling the beverages and under the circumstances whether the Tribunal was justified in overlooking this important aspect of the word 'fixed capital investment' under section 4A of the U.P. Trade Tax Act by merely relying upon the decision under the Bihar Act, namely, Bihar Deferment Rules, where the definition of 'fixed capital investment' is not identical and is restricted to 'fixed assets'? (ii) Whether the Trade Tax department having allowed the investment made in bottles and crates to other beverages manufacturing units, namely, Brindaban Agro Industries Ltd., there is no justification whatsoever for the Tribunal in reversing the order of the Divisional Level Committee as the Divisional Level Committee has taken unanimous and identical decision in the case of the other beverages manufacturing units? (iii) Whether the appeal filed on behalf of the Commissioner, Trade Tax being confined only to investment made in bottles and crates being included in the fixed capital investment and no other grievance having been made with regard to the period having been increased from ten years to fifteen years by the order dated 10th April, 2001 and the investment to be clubbed within five years, as contemplated in the notification dated 21st February, 1997 and the correction of the products description in the eligibility certificate, the Trade Tax Tribunal was not justified in setting aside the entire order of the Divisional Level Committee dated 10th April, 2001 allowing the review application on various other aspects also? (iv) Whether the appeal filed on behalf of the Commissioner, Trade Tax having not been verified in accordance with rule 66 (2) of U.P. Trade Tax Rules, was liable to be dismissed on this ground alone, specially when paragraph 4 of the memorandum of appeal contains absolutely wrong facts while referring to the letter of 21st June, 1999 in the case of Moon Beverages by overlooking the fact that the said letter could not have been written in the present review proceedings before the Divisional Level Committee inasmuch as the eligibility certificate itself was granted on 26th May, 2000 and the review application was filed thereafter in 2000 which came up for consideration in March, 2001? (v) Whether in any view of the matter, the order passed by the Trade Tax Tribunal dated 14th May, 2002 is illegal and is liable to be quashed??
(3.) THE facts of the case are that the assessee is a public limited company, which established a new industrial unit at 107 kms. Distance stone, Agra-Delhi Highway at Village Dautana, Tehsil Chhatta in the district of Mathura.;