2008 (7) TMI 887 - HC - VAT and Sales Tax

Eligibility certificate denied - Held that - The application was sent under a registered cover. There is a presumption regarding the service of documents sent by a registered letter to the addressee if it is correctly addressed. The said presumption is provided for under section 114 of the Evidence Act, 1872 read with section 27 of the Post Office Act, 1898. Apart from the above, the applicant has done what it could do in the facts and circumstances of the case. It is also well-settled that no person can be compelled to do an impossible act. On the face of a strike nobody could serve or file the application before the authority concerned. No person was there to receive the same. The view taken by the Tribunal that the applicant did not apply within the prescribed period is not legally correct. On the facts of the present case, the applicant did what it could do in the facts and circumstances of the case and as such the finding recorded by the Tribunal that the applicant did not apply within the statutory period cannot be sustained. The said issue is therefore, decided in favour of the applicant and against the Department.

Issues:
1. Eligibility for exemption certificate under section 4A of the U.P. Trade Tax Act, 1948.
2. Interpretation of the term "applies" in section 4A(5)(a) of the Act.
3. Presumption of service under section 27 of the General Clauses Act, 1897.
4. Effective date for eligibility certificate and modification in the certificate.

Detailed Analysis:
1. The judgment revolves around the eligibility of an applicant for an exemption certificate under section 4A of the U.P. Trade Tax Act, 1948. The applicant, established in June 1994, applied for exemption within the statutory period. The Tribunal initially granted the eligibility certificate from December 26, 1995, to June 21, 2002. However, the applicant sought a review for an earlier effective date, which was dismissed. Subsequently, the Tribunal amended the certificate to be effective from February 6, 1995, the date of the second application.

2. The issue of interpreting the term "applies" in section 4A(5)(a) of the Act was raised. The applicant had sent the application via registered post on December 6, 1994, within the six-month period from the date of production. The Postal Department returned the application due to a strike of State Government employees. The Tribunal contended that the application was not filed within the time limit. However, the High Court disagreed, emphasizing that the applicant had fulfilled its obligation under the circumstances, and the presumption of service applied under the Evidence Act, 1872.

3. Regarding the presumption of service under section 27 of the General Clauses Act, 1897, the Court held that sending the application by registered post created a presumption of service if correctly addressed. Despite the return of the application, the applicant had done all that was possible given the strike situation. The Court emphasized that no person can be compelled to perform an impossible act, and in this case, the applicant had met its obligations, leading to a ruling in favor of the applicant.

4. The judgment addressed the effective date for the eligibility certificate and modification in the certificate. The Court cited a previous case to support the argument that temporary registration sufficed for claiming exemption. Ultimately, the Court ruled in favor of the applicant, holding that the application was made within the prescribed period. The Tribunal was directed to issue a consequential order under section 11 of the U.P. Trade Tax Act, with no costs awarded.

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