- (1.) HEARD Sri Mohd. Arif Khan, Senior Advocate for the petitioner and Sri H.P.Srivastava, Addl. Chief Standing Counsel.
(2.) DRAPED in brevity, the facts arising out of the instant writ petition are that the Petitioner no.1-M/s Surapur Rice Complex, a registered partnership firm set up a New Industrial Unit in the backward area of Faizabad [now in Ambedkarnagar]. Petitioner no.2 is one of the partners of the Firm. The firm is engaged in the purchase of paddy which later on is converted into rice through milling process. M/s Surapur Rice Complex [in short referred to as the 'Firm'] was registered under the provisions U.P. Sales Tax Act [ later on known as U.P. Trade Tax Act] on 15.7.1985 and was also registered with the Industries Department as a Small Scale Industrial Unit. In order to avail the benefit of the exemption under Section 4-A of the U.P. Sales Tax Act, the firm applied for grant of Eligibility Certificate to the Regional Level Committee of the District Industries Centre, Faizabad and during pendency of the petitioners' application for grant of Eligibility Certificate, the Sales Tax Officer issued assessment notice. The said notice dated 16.10.1986 was assailed by the petitioners in writ petition no. 6446 (MB) of 1987 before this Court. A Division Bench of this Court while entertaining the writ petition passed an ad -interim order to the effect that the opposite parties will not refuse to issue Form-C, Form-37 and Form 3-B to the petitioners for claiming exemption merely on the ground that exemption has not been granted to it and so far as proceedings for assessment are concerned, they may go on but final orders shall not be passed. On an application, the Division Bench further clarified that opposite parties shall not refuse to issue Forms 3(C)-2 and Form 3(C)-5 to the petitioners. As averred above, the petitioner-Firm applied for grant of exemption from payment of tax being a new unit in the backwar area under Section 4-A of the Act before the competent authority on 14.3.1986. When the application for exemption was pending, on 16.10.1986, notices under Section 3-B of the Act were sent to the petitioner-firm requiring therein to pay tax and refused to issue Form 31, Form-C, Form 3(C)2 and Form 3(C) 5 to the petitioner-firm. Being aggrieved, a writ petition no. 6446(MB) of 1987 was filed wherein this Court passed an ad interim order dated 16.9.1987 and provided " that the opposite parties will not refuse to issue Form-C, Form-37 and Form 3-B to the petitioners merely on the ground that exemption has not been granted to it by paying the Sales Tax and so far as proceedings for assessment are concerned, they may go on but final orders shall not be passed". In the meantime, the application of the petitioner firm for grant of exemption from payment of sales tax and issuance of Eligibility Certificate was rejected vide orders dated 20.9.1988 and 22.9.1988. As a consequence, notices were issued to the petitioner firm for the assessment years 1985-86, 1986-87 and 1987-88.
(3.) THE aforesaid orders dated 20.9.1988 and 22.9.1988 were assailed in writ petition no. 8068(MB) of 1988, wherein by way of an ad interim order dated 12.10.1988, it was provided that the assessment proceedings may continue but final orders shall not be passed. Ultimately the aforesaid writ petitions were disposed of by the judgment and order dated 21.12.2005 and the orders passed by the Regional Level Committee dated 30.9.1988 and 22.9.1988 were set-aside. The relevant portion of the order dated 21.12.2005 reads as under:- " In our considered opinion the rejection of the application for exemption under Section 4-A of the Act on the ground that since the petitioners have deposited the Trade Tax for sometime and had got issued form 3-C(2) etc, therefore, they have become ineligible for the grant of exemption does not flow from the provisions of the aforesaid Act and the Rules, nor the State counsel has been able to place before us any such provision which makes the petitioners ineligible for the purpose. The provisions of Section 3-B, which has been put into service cannot be said to be applicable for the reasons already disclosed above. We, therefore, set aside the order passed by the Regional Level Committee dated 30.9.1988 and 22.9.1988 and remand the matter for deciding afresh after taking into consideration the relevant law and the Rules. This shall be done expeditiously say within a maximum period of two months from the date of receipt of the certified copy of the order. On the outcome of the aforesaid application for grant of exemption or issuance of eligibility certificate, and if the same is granted, it will be open to the petitioners to approach the appropriate authority for refund of the amount, who shall consider the question of refund of the amount in accordance with law as per Rules." ;