2019 (4) TMI 924 - HC - VAT and Sales Tax

Exemption in respect of investment made on moulds, dyes and jigs - Addition of investment in the fixed capital - eligibility certificate - Section 4-A(3) of the U.P. Trade Tax Act - HELD THAT - The exemption from payment of Sales Tax was initially granted by the State Government through U.P. Act No. 22 of 1984 with effectfrom 12.10.1983 by introducing Section 4A - under U.P. VAT Act regime the units were entitled for exemption only after they deposit the Tax and then a refund ofonly net tax paid only with the return of the remaining amount mentioned on the Entitlement Certificate were refunded or within the period as mentioned therein. Now, after introduction of Goods and Service Tax with effect from1st July, 2017 there is no scheme ofexemption. The matter in question relates to the grant of exemption initially granted under Sales Tax Act then under Trade Tax Act and then under U.P. VAT Act but, no exemption under GST Act. It is not appropriate to accept the contention of respondent that the petitioner has an alternative remedy and the petitioner be relegated back as if aggrieved bythe order passed by the Commissioner, aspresently only notice under Section 4A-(3) of the Act is issued - The case of grant or rejection of exemption, should be decided at the earliest so that businessman can plan his business accordingly. The case in hand shows that four tax regime have changed and presently country in under new G.S.T. Regime, the old pending cases should be decided at the earliest which will be in the interest of both theparties i.e. petitioner as well as the State and we, therefore, reject the contention of the respondent for relegating back the petitioner to approach the Commissioner in pursuance of notice issued under Section 4-A(3) of the Act. The Divisional Level Committee, after considering the report submitted by the two independent authorities has rightly directed to include the investment made by the petitioner in fixed capital investment towards moulds,dyes and jigs, which were given by the petitioner to various vendors for manufacture of components, which were exclusively being used for manufacture of components of the petitioner and, thereafter, manufacture of such components were supplied back only to the petitioner. District Level Committee, respondent No. 3 after considering the report submitted by G.M.D.I.C.and the Sales Tax department i.e. Joint Commissioner (Executive) respondent Nos. 4 and 5 have rightly came to the conclusion by including investment made by the petitione rin moulds, dyes and jigs in the fixed capital investment. Once the respondent No. 2 chooses not to file revision before the High Court against theTribunal's order of remand dated 17.12.2013, the same cannot be permitted to re-agitate the matter by way of a proceeding under Section 4A-(3) of the Act. Thus, the Commissioner has not exercised its powerjudicially in issuing the impugned notice dated 02.04.2018 under Section 4-A(3) of the Act - petition allowed.

Summary

Issues Involved:
1. Validity of the notice dated 2.4.2018 issued under Section 4-A(3) of the U.P. Trade Tax Act, 1948.
2. Entitlement of the petitioner to the addition of investment in moulds, dyes, and jigs in the fixed capital investment.
3. Jurisdiction of the Commissioner to issue the notice under Section 4-A(3).
4. Admissibility of writ petition despite the availability of alternative remedies.

Issue-wise Detailed Analysis:

1. Validity of the Notice Dated 2.4.2018:
The petitioner challenged the notice issued by the Commissioner under Section 4-A(3) of the U.P. Trade Tax Act, proposing to cancel the order which added the investment in moulds, dyes, and jigs to the fixed capital investment. The Tribunal had previously remanded the matter to the Divisional Level Industrial Development Authority Committee for a detailed inquiry. Post-inquiry, the Divisional Level Committee had directed the inclusion of the investment in the Eligibility Certificate. The Commissioner’s notice was argued to be invalid as it attempted to re-agitate a settled issue without new evidence.

2. Entitlement to Addition of Investment:
The petitioner argued that the investment in moulds, dyes, and jigs, given to vendors for manufacturing components exclusively for the petitioner, should be included in the fixed capital investment. The Divisional Level Committee, after considering detailed reports from the G.M.D.I.C. and Joint Commissioner (Executive), concluded that the moulds, dyes, and jigs were used exclusively for the petitioner’s components. These findings were not disputed by the Commissioner.

3. Jurisdiction of the Commissioner:
The petitioner contended that the Commissioner lacked the jurisdiction to issue the notice under Section 4-A(3) for re-agitating a matter already settled by the Tribunal and the Divisional Level Committee. The petitioner cited several judgments, including Mansarovar Bottling Co. Ltd. vs. CTT and Sunny Packagers Pvt. vs. State of U.P., emphasizing that the Commissioner’s power under Section 4-A(3) is limited to correcting clerical or arithmetical errors and not debatable issues. The Court agreed, noting that the Commissioner’s power must be exercised judicially and cannot be used to re-open settled matters.

4. Admissibility of Writ Petition:
The respondent argued that the petitioner should pursue alternative remedies, such as filing an appeal before the Tribunal. However, the Court held that the issuance of the notice under Section 4-A(3) was a jurisdictional issue, making the writ petition maintainable despite the availability of alternative remedies. The Court emphasized that the matter should be decided expeditiously due to the multiple tax regime changes over the years.

Conclusion:
The Court quashed the impugned notice dated 2.4.2018, allowing the writ petition. It concluded that the Commissioner did not exercise his power judicially and that the matter had already been settled by the Tribunal and the Divisional Level Committee. The Court also noted that the Commissioner had the option to file a revision or appeal against the Tribunal’s order but chose not to do so, thereby invalidating the re-agitation of the issue through the notice.