9911796707
TMI Blog1984 (1) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... er was inspected every month and even more frequently by the Khandsari Inspector and at all times he found that only one power crusher was being run and the other crusher was lying sealed. The Assistant Sugar Commissioner also made an inspection of the unit and found that only one crusher was working and the other was sealed. The petitioner paid purchase tax on the basis of option in respect of one power crusher which it had worked. The petitioner received a notice/order dated 15th May, 1981, saying that it was liable to pay purchase tax on assumed basis in respect of both the crushers as it had a licence for two crushers. The copy of this order/notice is annexure IV to the petition. Against this order, the petitioner preferred an appeal to the Assistant Sugar Commissioner, respondent No. 2, but that appeal was dismissed on 22nd June, 1982. Thereafter, a notice was again issued to the petitioner to pay up the purchase tax. In the counter-affidavit, the respondents have not denied the facts as set out in the writ petition. They admitted that in the option in form XIII, the petitioner had made a note that in the year 1980-81 only one power crusher will be worked. It was also not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri sugar by means of a power crusher, etc. Other sub-clauses of this clause deal with the procedure and other matters which are not relevant for the purpose of the present writ petition. Sub-clause (1) reads thus: "No manufacturer shall, without obtaining from the licensing authority, a licence, in the form prescribed in Schedule I, undertake or carry on any Process concerned with the manufacture of khandsari sugar by means of a power crusher, bel or centrifugal: Provided that no licence shall be given to any person who is minor." One provision of the Licensing Order which needs mention is clause 6 which deals with conditions for suspension or cancellation of licences. Sub-clause 1(d) alone is relevant and runs thus: "(d) has not, without adequate reasons worked the power crusher or khandsari unit continuously for a period of more than three months after the licence became effective." The form of licence given in Schedule I of the Licensing Order, inter alia, speaks of power crusher and its size. The licence, thus, is in respect of power crusher. The Licensing Order does not say anything about the liability of owner of a power crusher to pay purchase tax in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. (1-a) The State Government may prescribe the quantity of sugarcane which shall be assumed for the purposes of the proviso to sub-section (1), to have been purchased by the owners of different categories of units having regard to the crushing capacity of the units and other relevant factors. (1-b) The option referred to in the proviso to sub-section (1) shall be exercised by the owner of a unit by such date and in such form as may be prescribed and shall relate to the whole of an assessment year. The option once exercised shall be irrevocable for that year." Other sub-sections of section 3 deal with other matters and are not relevant for the purpose of the present writ petition. Other sections of the Act are also not relevant as they do not relate to creation of liability for payment of purchase tax. The U.P. Sugarcane (Purchase Tax) Rules, 1961, have been framed under the Act. Chapter III of these Rules relates to units. Sub-rule (1) of rule 13-A deals with exercise of option referred to in the proviso to sub-section (1) of section 3 of the Act. The main sub-rule (1) may be quoted; it was as under at the relevant time: "13-A. Payment of tax by owner exercising option. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner may decide to work his unit with lesser number of power crushers and let the remaining power crushers lie idle. Failure of an owner to work all the power crushers for which he has obtained licence will only expose him to the penalty of cancellation or suspension of licence, if he is unable to furnish adequate reason for not working the power crushers within the specified period. Thus, in every case, it will be a question of fact as to how many power crushers are included in a unit for purposes of the option, and the Act. The declaration in form XIII will show the number of crusher/crushers comprised in the unit in respect of which option has been exercised. That should ordinarily be conclusive. It is only in respect of the unit mentioned in Form XIII that purchase tax should be calculated on the basis of assumed purchase of sugarcane. In the instant case, the copy of the option in form XIII is on the record. It shows that in the prescribed particulars of both the power crushers were mentioned but it was clearly mentioned by adding a note that only one power crusher will be worked. From this option, it is clear that the petitioner intended to work a unit comprising one ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
