ASHOK KUMAR,J. - (1.) In this writ petition the petitioner has prayed for a direction for refund of Rs. 10,92,26,607/- for the assessment year 2009-10 and further a direction be issued modifying/quashing the order of refusal of the aforesaid refundable amount.
(2.) An amendment application has been filed by the petitioner, which has been allowed and accordingly, the writ petition has been amended, by which the petitioner has sought the following reliefs : "(i) that a suitable writ, order or direction in the nature of writ of mandamus be issued directing the respondent no. 2 to refund Rs. 10,92,26,607/- for the assessment year 2009-2010 ; (ii) that a suitable writ, order or direction be issued modifying/quashing the order dated 8.4.2013 in so far as it refuses the refund of Rs. 10,92,26,607/- for the assessment year 2009-2010; (iii) that any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper be also awarded to the petitioner; (iv) that costs be awarded to the petitioner throughout."
(3.) Learned counsel for the petitioner has submitted that the petitioner company has installed the manufacturing facility in the plant to manufacture four stroke motorcycle under the new foreign collaboration entered after 1.12.1994 which has been approved by the Government of India for which an additional investment of Rs. 130.07 crores have been made. According to the petitioner the Eligibility Certificate has been issued under Section 4-A of the U.P. Trade Tax Act by the competent authority and the fixed capital investment of the petitioner company/unit was mentioned in the Eligibility Certificate being Rs. 96,41,67,155/- whereas it should have been Rs. 130,07,57,450/-. Learned Counsel has submitted that there was no reason mentioned for reduction of the fixed capital investment. The said Eligibility Certificate has been treated as partial Eligibility Certificate and, therefore, the petitioner has agitated the matter upto the stage of Trade Tax Tribunal with regard to issue fixed capital investment as well as its production capacity which was substantially increased. Learned counsel for the petitioner has submitted that Section 42 of the U.P. VAT Act after its amendment provided under Section 42(3) for filing of an application for Certificate of Entitlement and the Commissioner of Commercial Tax, U.P. Lucknow was required to issue a Certificate of Entitlement in accordance with Section 42(3) of U.P. VAT Act. He has further submitted that as per the requirement of Section 40(6) of the U.P. VAT Act the petitioner applied for grant of Certificate of Entitlement and the same was granted by Certificate of Entitlement No. 318 dated 10.12.2012. Learned counsel for the petitioner has submitted that the Commissioner of Commercial Tax by his order dated 10th February, 2016 has amended the Certificate of Entitlement by which the petitioner became entitled for enhanced refund of Rs. 37,56,96,709/- in place of Rs. 20,68,26,078/- as mentioned in column no. 6 of the Certificate of Entitlement. Learned counsel for the petitioner has further submitted that after passing of the order dated 10th February, 2016 by the Commissioner of Commercial Tax, Lucknow, the petitioner became entitled to enhanced refund of Rs. 16,88,70,631/- within the period mentioned in the earlier Certificate of Entitlement granted to the petitioner on 10th February, 2012. In other words, the petitioner became entitled for refund of the amount for the period from 1st January, 2008 to 12th February, 2013.;