RAJES KUMAR, J. - (1.) PRESENT revision under Section 11 of U.P. Trade 'lax Act (hereinafter referred to as Act') is directed against the order of Full Bench of the Tribunal dated 24.03.2003
(2.) BRIEF facts of the case giving rise to the present revision arc that the applicant is a company incorporated under the Indian Companies Act, 1956, of which Sri Arvind Kumar Bhasin was the Managinu Director. The company was incorporated in the year 1994. It appears that with the intent to establish a new unit for the manufacturing of Synthetics Resins and paints, Shri Arvind Kumar Bhasin applied for the allotment of industrial plot at Greater Noida with the U.P. Stale Industrial Development Corporation Limited hereinafter referred to as 'UPSIDC vide letter dated 17.01.1994. After the receipt of the letter dated 17.01.1994, UPSIDC vide letter dated 27.01.1994 asked Shri Arvind Kumar Bhasin to file an application in a requisite form for the allotment of the land. In pursuance thereof, application in the proper form was furnished with the project profile showing the total investment about Rs. 73.50 lacs. On 05.03.1994 UPSIDC allotted 4000 sq. meters of land. On 15.06.1994 Shri Arvind Kumar Bhasin moved an application with the Regional Manager, Pradeshiya Industrial and Investment Corporation of U.P. Limited hereinafter referred to as 'PICUP' for the grant of term loan for the purpose of setting up an industrial unit. An application was also moved to the Regional Manager, UPSIDC on 20.04.199 for the term loan. Admitted, applications for the allotment of land and the term loan were moved by Shri Arvind Kumar Bhasin in his individual capacity and not on behalf of the company. It is claimed that on 19.05.1997 Shri Arvirie Kumar Bhasin wrote a letter to the Regional Manager, UPSIDC that he proposed to set up a unit of paint and Synthetic Resins at the allotted plot and requested to inform about the necessary formalities. Shri Arvind Kumar Bhasin had also filed applications with the Director of Industries on 09.07.1997 and 09.10.1997 for the registration as SSI Unit. On 19.11.1997 provisional registration certificate was issued by the Director of Industries for SSI Unit for the manufacturing of Synthetic Resins. The said certificate was issued in the name of Shri Arvind Kumar Bhasin and not in the name of the company. In the registration certificate paint was not mentioned. It is claimed that after full and final payment of Rs. 26.87 lacs, the allotted land was duly registered in favour of the applicant company. Applicant company made investment towards the land, building, plant and machinery and the commercial production was commenced on 30.10.2001 and first sale was made on 16.11.2001. The intimation about fulfilling of the conditions and for the claim of exemption has been given by post on 10.01.2002 under the certificate of posting to the Trade Tax authority. Trade Tax authority denied to has received any such intimation. Since in the registration certificate paint was not mentioned, an application was moved on 28.10.199S for the amendment in the SSI registration certificate with the request to add paints. The amended SSI registration certificate was issued on 13.03.2001/21.03.2002, in which both the Synthetic Resins and paints were mentioned. As per the order of the Tribunal, the application for the change of proprietorship business to Private Limited Company was moved on 27.10.1997, which was allowed only vide letter dated 22.01.2000. On the conversion to the Private Limited Company from the proprietorship business, Shri Arvind Kumar Bhasin became the Managing Director of the company. Thereafter, company applied for the term loan after 26.05.2002. An application was moved for the exemption on the turn over of the manufactured product under Section 4 -A of the Act. On the receipt of the application, it was processed and thereafter, show cause notice was issued by Divisional Level Committee raising objections that as per the notification No. Nl -2 - 3867/XI -9 (116)/94 -U.P. Act -15 -48 -Order -(74) -2001, dated 22.12.2001, the applicant had not fulfilled the conditions as on 31.03.2000, namely, the unit was not registered with the Director of Industries for paints; the application for the term loan was given to UPFC after 26.05.2000; Intimation letter to the assessing authority was not given within twenty days. Letter dated 10.01.2002 send under the certificate of posting had been denied to have been received. The applicant filed reply to the show cause notice. Divisional Level Committee on the consideration of the reply rejected the application for the three reasons mentioned in the show cause notice dated 04.12.2002 referred herein above. Being aggrieved by the order of the Divisional Level Committee applicant filed appeal before the Tribunal. Tribunal by the impugned order dismissed the appeal. Tribunal has accepted the claim of the applicant about the intimation to the assessing authority claimed to had been given on 10.01.2002. Tribunal however, held that the unit in the name and style 'M/s Akross Synthetic Private Limited' came into existence from 22.01.2000 when the merger of proprietorship concern of Shri Arvind Kumar Bhasin with the company was permitted; the unit of the company applied for the term loan after 26.05.2002 much after 31.03.2000;.unit was issued the registration certificate as SSI unit only for Synthetic Resins and the registration for the paint was granted on 21.03.2002 after the cut off date 31.03.2000. For the aforesaid reasons Tribunal rejected the claim of exemption. Heard Sri Bharatji Agrawal, learned Senior Advocate appearing on behalf of the applicant and Sri B.K. Pandey, learned Standing Counsel.
(3.) LEARNED counsel for the applicant submitted that the application for the term loan was given on 20.04.1994 with UPFC and 15.06.1 994 with PICUP and therefore, it is the case where the term loan was applied prior to 31.03.2000. He further submitted that in fact, right from very beginning SSI registration certificate was applied for Synthetic Resins as well as paints, which is clear from the project profile but inadvertently in registration certificate only Synthetic Resins was mentioned and paint was inadvertently left. Applicant moved an application on 28.10.1998 for the amendment and the addition of the paint in the registration certificate and thereafter, pursued the matter but the same could be added only on 21.03.2002. The delay was on the part of the Industries department and not on the part of the applicant. He further submitted that as per the notification the unit should be registered with the Director of Industries as on 31.03.2000 and there was no requirement in the notification that the unit should be registered for all the items to become eligible for the grant of exemption. Learned Standing Counsel submitted that the proprietorship business was changed into Private Limited Company on 22.01.2000 when the permission in this regard was granted and in this view of the matter unit was owned by M/s Akross Synthetics Private Limited on 22.01.2000 when merger took place. Admittedly, the application for the term loan with the UPFC was moved by the applicant company after 26.05.2002 and in pursuance of which term loan was grained. He further submitted that as on 31.03.2000 the unit was not registered with SSI in respect of the paints. SSI registration was granted on 26.11.2002 showing the date of production on 30.10.2001. Prior to this date, no certificate was issued to the applicant company. Therefore, as on 31.03.2000 the applicant unit was not registered with SSI.;