R.R.Misra - (1.) BY means of this writ petition the assessee has challenged the orders passed by the opposite-parties levying sugarcane purchase tax for the entire month of November 1987. During the crushing season 1987- 88 the assessee ran its unit on option basis. It, however, gave intimation dated 16th November, 1987 by registered post to start the unit with effect from 22nd November, 1987. The opposite-parties in the impugned orders have taken the view that since the said intimation had not been given one week earlier as contemplated by the first proviso to sub-clause (1-A) of Rule 13-A of the U. P. Sugarcane (Purchase Tax) Rules, therefore the said intimation is not in order and the petitioner is liable to pay purchase tax for the entire month of November 1987.
(2.) I have heard learned counsel for the assessee. He submits that 15th November, 1987 was a Sunday and, therefore, in accordance, with the provisions of section 10 of the General Clauses Act, the act that was to be done on 15th November, 1987 (Sunday) was rightly done on 16th November, 1987 which was Monday. This submission made by the learned counsel for the assessee, in my opinion, has got no force for two reasons. First, in the present case the appellate authority has recorded a finding that although 15th November, 1987 was Sunday yet by his letter dated 21st October, 1988 the Superintendent of Post Offices, Shahjahanpur has informed that even on Sunday a registered letter could be sent from the Bahadurganj Post Office in which area admittedly the Head Office of the assessee is situate. A further finding has also been recorded by the appellate authority that earlier also the petitioner had always been sending its registered letters to the opposite-parties through the same Bahadurganj Post Office. Under these circumstances, the view taken by the appellate authority is that there was no disability for the petitioners to have sent the said information by registered post even on 15th November, 1987 which was a Sunday. The second reason for not accepting the said submission is only in the alternative and it is to this effect that under section 10 of the General Clauses Act if some action could not be taken on the last day of the period prescribed then the limitation is extended to the next working day. In the present case, the situation is converse. The petitioners seek to rely on the provision of the said section 10 of the General Clauses Act not for the last day of that period prescribed but for the first day, i. e. the opening day of the limitation period. In my opinion that was neither the intention of the legislature nor the said section can be interpreted in the manner as suggested by the learned counsel for the petitioners. On the other hand, I find that on the facts of this case provisions of section 10 of the General Clauses Act will not apply. Learned counsel for the petitioners has also in this connection relied upon a decision of the Supreme Court in the case of D. P. Mishra v. Kamal Narayan Sharma, AIR 1970 SC 1477. It has been clearly stated in the said case that if the period prescribed by some law expires when the court is closed, the appeal can be filed on the re-opening day. This authority, therefore, in my opinion does not at all support the case of the petitioner. The second submission made by the learned counsel for the assessee is that the provisions contained in the said proviso to Rule 13-A of the U. P. Sugarcane (Purchase Tax) Rules that the intimation is to be given under registered cover atleast one week before the date on which the unit-holder decides to start the working of his unit is only directory and not mandatory (Emphasis supplied). Learned counsel has not elaborated it at all. I, however, find that from a perusal of the aforesaid proviso in question the legislative intent is clear that atleast one week elapsed between the date of sending of the intimation and the date of the start of the unit. In these circumstances, in my opinion, the said provision is mandatory and cannot be held to be directory. That apart, in the case of Krishna Kumar Mittar v. State of U. P., 1981 UPTC 370, a Division Bench of this Court has taken the view that if petitioner gives six days notice, the said notice does not comply with the provisions of the proviso to sub-rule (1-A) of Rule 13-A of the U. P. Sugarcane (Purchase Tax) Rules. In view of this authority which is binding on me also, in my opinion on the facts recorded by the opposite-parties, there is no error of law involved in their impugned orders.
(3.) IN the result, the writ petition fails and is dismissed summarily. Petition dismissed.;