SUNIL AMBWANI,VIRENDRA SINGH,J - (1.) THE petitioner is a Private Limited Company registered under the Companies Act, 1956 engaged in manufacture and sale of television chasis, colour television, television parts and its accessories. The company as a new unit applied under section 4-A of the U.P. Trade Tax Act for exemption from trade tax in the year 2001 and was granted exemptions as well as concessions in payment of trade tax for ten years beginning from 24.10.2001 to 23.10.2011 on graded basis. In the 1st and 2nd year, the company was to get exemption in trade tax at 100%; in the 3rd year at 75%; from 4 to 7th year at 50% and from 8 to 10 year at 25%.
(2.) BY this writ petition the petitioner has prayed for a writ of certiorari quashing the assessment order dated 5.3.2009 passed by the Deputy Commissioner (Assessment) Sector-2, Commercial Tax, District Gautam Budh Nagar to the extent of levying the State Development Tax @ 1% on the sale of chasis, chasis with components and colour television for the assessment year 2005-06. The petitioner has also prayed for a writ of mandamus declaring the levy of State Development Tax @ 1% on the eligibility certificate holder vide U.P. Act No. 9 of 2005 and to declare it ultra vires. It is stated by Shri Arun Kumar Gupta, learned Counsel for the peti­tioner, that the grounds, on which the State Development Tax is being chal­lenged by the petitioner, cannot be looked into by the appellate authority and the Trade Tax Tribunal and thus the alternative remedies, provided under the Act, should not be taken to be a bar in filing the writ petition, he submits that exemptions granted to the petitioner as tax benefit in the ratio of capital in­vestment stands reduced by the imposition of State Development Tax and thus the State Government has no power to levy the State Development Tax under section 3-F of the Act of 1948 from the eligibility certificate granted prior to in­sertion of U.P. Act No. 9 of 2005. He would further subjnit that Entry-55 of the 7th Schedule under Article 246 of the Constitution of India includes the words "sale and purchase". The umbrella of sale and purchase cannot cover and extend the imposition of State Development Tax. The word 'development' relates to other functions of the State and is not included within the word 'entry' and hence the amendment is totally unconstitutional and is hit by Entry 55 and is in colourable exercise of power.
(3.) SHRI Gupta has filed an amendment application to add the words under Article 246 and to correct the spelling of the words 'ultra vires' in various para­graphs and prayer clause in the writ petition. The amendment application is allowed.;