- (1.) R. K. Gulati, J. The short question which arises for consideration is, as to when does the working of a crushing Unit commence whether with reference to the date when the sugarcane is purchased for the first time by Unit Holder in a given season or from the date the Crusher is put to operation and the sugarcane is crushed. The as sessing authority as well the appellate authority has taken ;the view that the Unit commences working from the date the sugarcane is purchased and the contention to the contrary, which was the case of the petitioned, was repelled. This controversy is no longer res integra and has been adjudi cated upon by a Division Bench of this Court in Raj Kumar Agarwal Moradabad v. Assessing Officer, Bilari and another, 1974 UPTC 449.
(2.) IN this view of the matter, it is not necessary either to set out the facts or the relevant provisions in detail which have bearing on the dispute. However, for a bet ter understanding of the case few un disputed facts may be noticed. The petitioner is running a khandsari Unit in village Pipalia post office Uttamnagar, District Nainital. For the crushing season 1989-90, the petitioner opted to pay the sugar cane purchase tax on assumed basis under the relevant provisions of U. P. Sugarcane (purchase tax) Act, 1961 and in terms of Rule 13-A of the U. P. Sugarcane (purchase Tax) Rules, 1961 (hereinafter referred to as "the Rules" ). Sub-rule (1) of Rule 13-A of the rules enjoins upon the owner of a Unit, who has opted for assessment to sugarcane pur chases tax on assumed basis to exercise that option by filing the declaration in the 'prescribed form which shall be sent under registered cover to the Sugar Commissioner and the assessing officer so as to reach them on or before the date specified in that Rule or fifteen days before the start of the Unit whichever is earlier. That Rule further provides that in such declaration the owner shall specify the date from which he decides to start working of the Unit. There is no dispute that the petitioner in the instant case, had submitted a declaration in the prescribed form in which he intimated 29-10-1989 as the date for starting the crusher. It appears that the Unit of the petitioner was inspected on 27-10-1989 and it was found that the Unit had not been put to operation. No sugarcane had been crushed but certain quantity of sugarcane on that date had been purchased. It is also not in dispute that the Unit started cursing on 29-10-1989, the date which was intimated in the declaration. Rule (2) of Rule 13-A of the Rules prescribes the quantity of sugarcane for the purchase of which the owner shall be liable to tax. It says that where the owner of a Unit exercises the option the quantity of sugarcane on the purchases of which he shall be liable to pay tax, shall be assumed on month ly basis accordingly to the specification laid down to Schedule-I. This Rule also deals with the calculation of tax for a month or a part of month and in varying situation. The first proviso attached to sub-rule (2) of Rule 13-A makes a provision in respect of the quantity of sugarcane for the purposes of payment of tax in respect of the first month of the working of the Unit. It says that in the first month of the working of the Unit in any assessment year, the quantity of sugarcane for the purposes of payment of tax. shall be assumed from the date specified in the dec laration made under sub-rule (1) are changed under the first and the second proviso to that sub-rule as the case may be.
(3.) AS the respondents entertained the view that the working of a unit starts on the date the sugarcane is purchased without anything more, they assessed the petitioner to purchase tax for the entire month of October, 1989 and for that purpose placed reliance on the first proviso to Rule 13-A read with third proviso to sub-rule (2) of the Rules. The first proviso to sub-rule (1) of Rule 13-Aof the Rules reads as under: "provided that where the owner decides to start the working of his unit from any date earlier than the date specified under this sub-rule he shall, before the starts the working of his unit, give intimation to this effect, in writing and under registered cover at least one week before the date from which he decides to start the working of his unit, to the Sugar Commissioner and the ASsessing Officer. " The Provisions contained in the third Proviso to sub-rule (2) of rule 13-A stipulates that where the owner of an unit is found to have started the working of its unit before the date specified or change under sub-rule (1) the quantity of sugarcane for the Purposes of payment of tax shall be assumed for the whole of such month.;