- (1.) THE petitioner in this writ petition is carrying on the BUSINESS of purchase and sale of Mentha Oil and the business is being carried out at Masauli District Barabanki from where purchase and sale are being done. In the writ petition it has been stated that the proprietor of the Firm met with a major Heart Attack as a result of which he requested the Addl. Commissioner (Law) Commercial Tax Lucknow to be permitted to change his Head Office from Masauli, Barabanki to Kanchanpur Matiyari Chauraha, Faizabad Road, Lucknow. This application has been filed as Annexure -2 page 34 of the writ petition.?? This application was considered by the Addl. Commissioner (Law) Commercial Tax, Head Office, Lucknow who by his order dated 19.11.2013 permitted the petitioner to change his Head Office from Masauli, Barabanki (Khand -I) to Kanchanpur Matiyari Chauraha, Faizabad Road, Lucknow (Khand -II). On 27.6.2014 a survey was conducted at the business premises of the petitioner at Masauli, Barabanki by the Dy. Commissioner, Commercial Tax, Lucknow where stock of Menthal Oil as well as books of account were found. The report of the Dy. Commissioner, Commercial Tax is at page 37 of the paper book of the writ petition, which clearly mentions that the entire stock register were found at Masauli, Barabanki and the stock of Menthal Oil weighing 43,920 kg. was also found there. An inspection was also conducted at the Head Office of the Company at Kanchanpur, Matiyari Chauraha, Faizabad Road, Lucknow (Khand -II).? However, on 4.7.2014 a show cause notice was issued by the Dy. Commissioner, Commercial Tax, Lucknow to the petitioner to show cause to as why his registration certificate under the U.P. VAT Act 2008 be not cancelled on the ground that in THE SURVEY made at the Head Office of the petitioner at Lucknow neither books of account nor stock of Menthal Oil were found. The show cause notice has been filed as Annexure -4 to the writ petition. This was a notice issued under section 17(11) of the U.P. VAT Act.
(2.) THE petitioner submitted his reply to the show cause notice on 7.7.2014 (Annexure -5 to the writ petition) stating clearly therein that no business of Menthal Oil is carried out from the Head Office and therefore no stock is kept there and only some books of account of the previous year is kept at the Head Office. ? It was also stated that under section 17(11) of the U.P. VAT Act registration can be cancelled only on the following grounds: (a) dealer's liability for payment of tax has ceased; or (b) the dealer has discontinued the business; or (c) of order of cancellation, where - (i) the dealer has obtained registration certificate by fraud or by misrepresentation of facts; or (ii) the dealer has failed to furnish security or additional security, as the case may be; or (iii) the dealer has transferred any prescribed form of declaration or certificate obtained by him to any person against the provisions of this Act or the rules made thereunder; or (iv) the dealer has permitted some other person to carry on business in his name; or (v) the dealer has issued any tax invoice to a dealer without making actual sale of goods; or (vi) where a transporter or carrier or transporting agent or railway container contractor fails to file return or otherwise acts in contravention of the provisions of this Act or rules made thereunder; (vii) a person acts in contravention of provisions of Section 43; (viii) where a dealer has failed to pay the tax, penalty or other dues within three months of the date such tax, penalty or other dues become payable; (ix) registration certificate has been cancelled for any other sufficient cause. On 8.7.2014 an order was passed by the Dy. Commissioner, Commercial Tax, Lucknow wherein he notices that on 27.6.2014 when a survey was conducted at the site of business no stock was found nor any business activity was noticed at Lucknow nor any books of account were found.? He has however, noticed that on 27.6.2014 in a similar survey conducted at Mausali, Barabanki all the books of account and other documents were found and stock was also found and that from this it is established that the Trader has not maintained any books of account and other documents at Kanchanpur Matiyari Chauraha, Lucknow and that his center of business is elsewhere.? However, inspite of these findings the Dy. Commissioner, Commercial Tax, Lucknow has held that registration of the petitioner -Trader ought to be cancelled and has accordingly cancelled the same.
(3.) AGAINST this order of cancellation of registration the petitioner filed a writ petition no. 6211 of 2014 and the Division Bench of this Court disposed of the writ petition on the ground of alternative remedy and gave liberty to the petitioner to file an appeal before the competent authority within 15 days under the U.P. VAT Act by order dated 17.7.2014. ? It is stated that the appeal has been filed and the same has also been rejected by order dated 23.7.2014 (Annexure -8 to the writ petition). Aggrieved by this order the petitioner has preferred a second appeal before the Commercial Tax Tribunal Bench -III, Lucknow. ? Alongwith the appeal the petitioner has also filed an application under section 57(9) of the U.P. VAT Act praying for stay of the operation of the impugned order under section 17(11) of the U.P. VAT Act dated 8.7.2014. Copy of the application has been filed as Annexure -9 to the writ petition. ?? In the application it has been specifically stated by? the petitioner -Trader that he had only applied for change of Head Office from Masauli, Barabanki to Kanchanpur Matiyari Chauraha, Lucknow and that no business was being carried out from the said place and that the entire business was being carried out from Lucknow. A reference was also made to THE SURVEY report dated 27.6.2014 which also mentions that all the books of account and other documents including stock was found at the place of business at Masauli, Barabanki.? The petitioner has also referred specifically to the provisions of Section 17(11) of the U.P. VAT Act stating that none of the conditions laid down therein have been violated by the petitioner which may warrant cancellation of the registration of his business.?? However, the Member, Commercial Tax Tribunal, Lucknow has rejected the stay application of the petitioner by the order dated 28.7.2014 which has been impugned in the present writ petition.;