- (1.) By means of this writ petition, the petitioner-M/s Devyani Foods Ltd. has prayed for quashing of the order dated 14.01.2005 passed by Commissioner, Trade Tax No.578 after summoning the original order and notices issued by the Deputy Commissioner (Assessment), Trade Tax-10, Agra dated 27.01.2005 (Annexure-2 and 3A to 3J). The petitioner has further sought a direction in the nature of mandamus to restrain the opposite parties from demanding the interest in terms of the aforesaid notices issued by the Deputy Commissioner (Assessment), Trade Tax-10, Agra in compliance of the orders of the Commissioner, Trade Tax, Lucknow dated 14.01.2005.
(2.) Undisputed facts are that the petitioner was the manufacturer of ice cream and was doing business in the style of M/s Devyani Foods Limited, Agra. The petitioner was a registered dealer and applied for eligibility certificate under Section 4-A of the Uttar Pradesh Trade Tax, 1948 (hereinafter referred to as 'the Act') for the aforesaid business. The eligibility certificate was granted to the petitioner in terms of Government Order dated 31.03.1995 being Eligibility Certificate No.203 dated 16.04.2002 effective w.e.f. 31.10.1996 to 31.10.2006. The petitioner after grant of eligibility certified applied for deferment facility under Section 8 (2-A) of the Act on 26.04.2002 to the Commissioner Trade Tax, U.P. Lucknow. The application to this effect was received in the office of Commissioner on 13.05.2002. The Joint Commissioner of the area recommended for the deferment vide letter dated 22.05.2002. When the application for deferment was under consideration, the petitioner sold out its unit to one M/s Universal Dairy Products Private Limited by a deed of assignment dated 23.12.2002 and M/s Universal Dairy Products Private Limited take over the possession of the unit. While taking over the possession of the unit by the M/s Universal Dairy Products Private Limited, it was also informed that the petitioner's unit was actually closed down on 23.12.2002. While dealing with the application of deferment, the Commissioner vide its order dated 17.06.2004 after exercising powers under Section 8(2-A) of the Act read with Rule 43 made under the Act known as U.P. Trade Tax Rules, 1948 and also in terms of the provisions contained in Section 4-A of the Act allowed the deferment in place of exemption in tax on the manufactured products during 31.10.1996 to 22.12.2002 but directed to deposit the admitted tax in terms of sub-rule 4 (b) of Rule 43 within three months from 23.12.2002, the day on which the unit was closed down. The deferment facility, however, was extended to the petitioner only till 23.12.2002. It was also mentioned in the order itself that on account of closure of business on 23.12.2002, the facility of deferment automatically comes to an end and tax amount ought to have deposited. It was also directed that if the amount is not deposited in terms of the aforesaid Rule, the Assessing Officer shall recover the entire amount of interest and tax. It was also not in dispute that the entire amount of admitted tax of Rs.25,68,833.55 till 23.12.2002 was deposited on 30.06.2004 by treasury challans as is evident from Annexure-17 of the writ petition. After deposit of the entire tax under the deferment scheme as stated above, the department issued notices demanding interest for not depositing the amount within three months from the date of its accrual i.e. from the date of closure of the business on 23.12.2002 till the date of actual payment of the tax. Aggrieved by these notices of demand, this writ petition has filed along with the order passed by Commissioner, Trade Tax, Uttar Pradesh vide its letter dated 14.01.2005.
(3.) Heard Sri Naresh Chandra Mishra, learned counsel for the petitioner and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents.;