- (1.) BY means of instant writ petition, under Article 226 of the Constitution, the petitioner, Nav Shakti Electric and Machineiy Stores, 369, Rakabganj, Faizabad, through its partner Sri Kuldeep Narain Singh, has sought for following reliefs: (i) issue a suitable writ, order or direction in the nature of writ of certiorari quashing the approval granted by opposite party No. 2 and consequential notice issued under Section 21(2) (annexure Nos. IV dated January 27, 2007 and VII dated February 9, 2007) to this writ petition after summoning the records. (ii) issue a suitable writ, order or direction in the nature of writ of mandamus/prohibition directing/restraining opposite party No. 3 not to impose tax under Section 21(2) of the Act for the assessment years 2000 -01, 2001 -02 and 2002 -03 during the pendency of this writ petition before this honourable court since the copper wire is taxable at the point of manufacturer/importer and had been purchased within the State of U.P. and admittedly the petitioner is neither a manufacturer nor a importer. (iii) issue a suitable writ, order or direction in the nature of mandamus directing opposite party No. 3 not to levy and collect tax under Section 21(2) of the Act for the assessment years 2000 -2001, 2001 -02 and 2002 -03 during the pendency of this writ petition before this honourable court. (iv) issue any other further writ, order or direction which this honourable court may deem fit and proper in the circumstances of the case in favour of the petitioner. (v) allow the cost of the petition.
(2.) BRIEF background of the case is that the petitioner is a registered dealer under the provisions of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act"), and claims that it has been discharging its liabilities and obligations in accordance with the provisions of the Act. The petitioner claims that it has been regularly purchasing copper wire from M/s. Gopal Electric Stores, 163, Jawahar Ganj, Hapur, which is a trading concern of M/s. U.P. Insulating Cable Co., 72, Dheer Khera, P.S. Kharkhoda, Meerut and M/s. Balaji Insulating Co., 123/4, Wrightganj, Ghaziabad, who are the manufacturers of copper wire. The petitioner has stated that copper wire is liable to be taxed at the point of manufacturer or importer in the State of U.P. The petitioner has further stated that M/s. Gopal Electric Stores, 163, Jawahar Ganj, Hapur, is a registered dealer under the U.P. Trade Tax Act, 1948 vide registration No. HP 0090466 with effect from April 1, 1993 and under the Central Sales Tax Act vide registration No. HP 5053620 with effect from April 15, 1993 and has been selling the copper wire to the petitioner. Subsequently, the registration numbers of M/s. Gopal Electric Stores, 163, Jawahar Ganj, Hapur were changed and now the Trade Tax number of M/s. Gopal Electric Stores, 163, Jawahar Ganj, Hapur under the U.P. Act is HP 0108088 with effect from April 1, 2000 and registration under the Central Act vide registration No. HP 5067399 with effect from April 6, 2000 as mentioned on the invoice No. 000426, February, 2001 which clearly shows that M/s. Gopal Electric Stores, 163, Jawahar Ganj, Hapur, is a registered dealer in the State of U.P. and the goods sold by them are tax -paid goods, which is also mentioned on their aforesaid invoice. Similarly, M/s. Balaji Insulating Co., Ghaziabad is also a registered dealer vide registration No. GC 0086044 dated September 19, 2002. The petitioner has thereafter come up with a case that copper wire purchased by the petitioner from the aforesaid dealers is taxable at the rate of eight per cent at the point of manufacturer or importer with effect from January 17, 2000 and once the commodity is taxable at the point of manufacturer or importer, it cannot be subjected to tax in the State of U. P., in the hands of the petitioner, since the scheme of the Act is single point taxation. The petitioner has stated that it had been regularly assessed to tax by the Assistant Commissioner of Trade Tax, Sector I, Faizabad under Section 7(3) of the Act for the assessment years 2000 -01, 2001 -02 and 2002 -03, and was declared as exempted under the provisions of the Act, since copper wire was taxable at the point of manufacturer or importer, and admittedly, the petitioner was neither manufacturer nor importer. The petitioner has given the background of the case that with ulterior motives an F.I.R. was lodged against the petitioner on April 5, 2000, and when persons behind the same failed in their endeavour, then a complaint against the petitioner was made to the Commissioner of Trade Tax on April 20, 2005, and on the said complaint being made, notice under Section 21(2) of the Act was issued. At the said juncture, aggrieved against the same, the petitioner preferred a Writ Petition No. 1370 (MB) of 2006, and the Division Bench of this Court after hearing the matter on March 2, 2006 asked the petitioner to file objection and the authorities were asked to decide the same. Pursuant thereto the petitioner filed a detailed objection on June 13, 2006. Said objection was not decided and fresh notice was issued, then the petitioner preferred another Writ Petition No. 7876 (MB) of 2006, whereupon this Court proceeded to pass order that since no permission under Section 21 of the Act had been accorded, as such writ petition was not maintainable, and it was left open to the petitioner to appear and press the objections before" the authority concerned. Thereafter orders have been passed under Section 21(2) of the Act, according approval, and consequential notice has been issued, which is subject -matter of challenge in the present writ petition.
(3.) COUNTER -affidavit has been filed, and therein this fact has been admitted that copper wire is taxable at the point of manufacturer or importer, and further it has been submitted from the documents shown by the petitioner, tax liability was not discharged, and it was for the petitioner to prove that from the above two dealers, the petitioner had purchased tax -paid goods. It has also been stated that after the abovementioned orders were passed, 178 rolls of copper wire, valued at Rs. 6 lakhs, were recovered on January 17, 2003 from the petitioner's godown by the police of P.S. Kharkhoda, Meerut. Moreover, the said commodity did not find place in the books of account of the petitioner, and thus the said copper wire was purchased by the petitioner without paying any tax thereon; the petitioner also failed to produce any evidence to the effect that the said 178 rolls of copper wire were purchased by it from the registered dealer and the said registered dealer had already paid tax qua the said goods, and it has been stated that the permission has been rightly accorded. To the said counter -affidavit rejoinder affidavit has been filed, disputing the averments mentioned therein, and it has been stated that in the criminal proceedings that the said goods had been actually purchased by the petitioner, has been approved of, and the tax liability cannot be fastened on the shoulders of the petitioner, and permission under Section 21(2) of the Act has been accorded in mechanical manner.;