Prakash Krishna, J. - (1.) THE applicant, a public limited company, incorporated under the Indian Companies Act, registered under the U.P. and Central Sales Tax Act, a "new unit" within the meaning of Section 4 A of the U.P. Trade Tax Act has questioned the legality and validity of the order dated 10th of May, 2000 delivered by the Trade Tax Tribunal in appeal No. 96 of 1999. The facts of the case lie in a narrow compass and not much in dispute. It is an accomplished fact that the applicant applied for and was granted eligibility certificate under Section 4A of the Act for manufacturing of four stroke motorcycle. The said unit had entered into an agreement dated 25th of March, 1996 with a new foreign collaboration namely Yamaha Motors Company Limited.
(2.) THE agreement was duly approved by the Government of India. In the present revision the only dispute is with regard to the interpretation of "fixed capital investment" as defined in Explanation (4) (a) (v) to Section 4A of the U.P. Trade Tax Act. The contention of the dealer that price or value of "know -how" shall also be included in "fixed capital investment" has not been found favour either with the Divisional Level Committee or with the Tribunal. The second dispute is with regard to the disallowance of the fixed capital investment of Rs. 12,60,000/ - for providing car parking to the engineers and other workers of the factory. The third and last grievance raised by the applicant is that instead of passing an order of remand to find out the investment made in canteen, the same should have been allowed by the tribunal, as it was claimed. The Divisional Level Industrial Development Authority Committee (constituted under Section 4A of the Act) through the Additional Director of the Industries, Greater Noida, Gautam Buddha Nagar allowed the investment of Rs. 96.41 crores as against the investment of 130 crores claimed by the applicant, vide eligibility certificate dated 17.6.1999 for the purposes of eligibility certificate under Section 4 A of the Act.
(3.) THE said order was challenged in appeal before the tribunal and it was contended that the investment made by the dealer towards the obtaining of "know -how" is liable to be included in the fixed capital investment. In this account it was stated that a sum of Rs. 3, 75,00,000/ - has been invested by the applicant. The tribunal in view of the order of five members bench of tribunal in the case of Flex Engineering Limited took the view that the said amount shall not be included in the fixed capital investment. Challenging the said finding Shri Bharatji Agrawal, the learned senior Counsel, submits that on a true and correct interpretation of Explanation -4 to Section 4 -A of the Act, the investment made in obtaining the know -how is included in the phrase "fixed capital investment" as defined therein. Shri Bipin Kumar Pandey, the learned standing Counsel on behalf of the department, on the other hand, supports the order of the tribunal.;