9911796707
TMI Blog2013 (5) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... istering Authority. There is also no prohibition under the Act for grant of formal registration certificate to a dealer posthumously. Rather it was the necessity in law, as Anil Kumar Kesarwani who was a registered dealer under the erstwhile Act and was liable to pay tax under the new Act, was under statutory obligation to apply for being registered under the Act and reciprocal duty being cast upon the Registering Authority to grant such certificate to him. Thus, even otherwise, there was no illegality in the action of the Registering Authority in registering Anil Kumar Kesarwani by granting registration certificate dated 18th September, 2010. As such, the first objection by the Insurance Co. that the registration certificate having been granted 15 month after the death of Anil Kumar Kesarwani is invalid, cannot be sustained. A bare perusal of provision of erstwhile Act and the new Act will show that the requirement of obtaining biometric data is not the prerequisite for registering a person under the Act. Rather section 17(3) read with section 17(5) states that every dealer holding registration certificate under the erstwhile Act, as a dealer, is deemed to be registered under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents. However, no formal order was passed by the registering authority on the aforesaid applications. 2. It seems that the State Government had floated a scheme of Group Insurance for all registered dealers by the name of Traders Accident Insurance Scheme. For the period 12th November, 2008 to 11 November, 2009, United India Assurance Co. Ltd. was appointed as the insurer liable to settle claims under the Group Insurance Scheme. The Additional Commissioner (Accounts), Trade Tax, Uttar Pradesh vide letter dated 25th November, 2008 circulated information in this regard to all Joint Commissioners. Paragraph 3 of the said letter contains the salient features of the Insurance Scheme some of which relevant for the purpose of the instant case are reproduced below :- Hindi portion 3. It appears that Anil Kumar Kesarwani, husband of the petitioner died in a road accident on 4th June, 2009 and thereafter the petitioner being his widow and legal representative moved an application for insurance claim on 7th October, 2009. She also filed an application before the respondent no. 3, for cancellation of registration under U.P. VAT Act, 2008 w.e.f. 4th June, 2009. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to be a registered dealer and therefore, there is no requirement for such exercise being held. He further submits that the requirement of obtaining biometric is an obligation of Trade Tax department and Anil Kumar Kesarwani cannot be held liable for the same nor claim for insurance can be declined on the said ground. 7. A counter affidavit has been filed in the instant writ petition on behalf of respondent nos. 1 and 3 in which they have supported the case of the petitioner by stating that the registration certificate issued on 18th September, 2010 to the petitioner was valid for the period 26th January, 2005 to 4th June, 2009 and it was incumbent upon the Insurance Co. to have acted on basis thereof while settling the insurance claim of the petitioner. The real opposition to the writ petition is by the Insurance Co. which has filed a separate counter affidavit. It has opposed the writ petition primarily on the following grounds :- (a) There is no justification for granting registration certificate to Anil Kumar Kesarwani on 18th September, 2010 which is two years and seven months from the date of the application and 15 months from the date of his death. (b) Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof in writing, direct that the certificate of registration, if issued shall take effect from the date on which the dealer became liable to registration under sub-section (1); (b) The registration granted to a dealer shall remains in force so long as the dealer continues to be liable to registration under this Act and deposits a fee of [one hundred rupees] in the prescribed manner and before the commencement of the assessment year to which the fee relates, failing which the certificate of registration shall cease to remain in force: Provided that if the dealer deposits such fee after the commencement of the assessment year to which the fee relates together with a late fee of [fifty rupees] for every month of delay or part thereof, [the assessing authority] may, on being satisfied that there were sufficient reasons for the delay in depositing the fee in time and after recording his reasons therefor in writing, direct the certificate of registration shall be deemed to have remained in force as if no delay had occurred in depositing the fee:- Provided further that the registration granted to a dealer shall remain in force so long as the dealer continues to be liable to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster the dealer and grant to him a certification of registration in Form XV. 10. A perusal of the aforesaid provisions will show that under the erstwhile Act, there was no requirement of obtaining biometric data of a registered dealer. The erstwhile Act was repealed by U.P. VAT Act, 2008. It provided for introducing value added system of taxation for levy and collection of tax on sale or purchase of goods in the State of U.P. and for matters connected therefor and incidental thereto. Section 3 of the said Act provides for the incidence and levy of tax and stipulates that every dealer shall be liable to pay tax under this Act for each assessment year on his taxable turnover of sale or purchase or both, as the case may be, of taxable goods, on such rates and on such point of sale or purchase provided under section 4 or section 5. Section 17 of the U.P. VAT Act, provides for the manner in which dealers are to be registered thereunder. Relevant portion of section 17 is reproduced below :- Section 17. Registration of Dealers (1) Every dealer liable to pay tax under this Act shall obtain registration certificate issued by the prescribed registering authority in the prescribed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that - (a) the application for issue of registration certificate is in order; (b) the information furnished is correct and complete; and (c) any requisite fee has been deposited and security where needed is furnished, the registering authority may, after making such inquiry as it may deem necessary, cause the dealer to be registered and issue registration certificate in the prescribed form and prescribed time. (8) ---------------------------- (9) Subject to the provisions of sub-section (5), the registration certificate issued under the erstwhile Act and validly held under this Act shall be valid with effect from the date of commencement of this Act. (10) Subject to provisions of sub-section (5), every registration certificate shall remain in force till the date of discontinuance of business. (Emphasis Supplied) 11. Rules framed under the Act provides that an application for registration of a new dealer shall be made in Form VII, while application referred to in sub-section (5) of section 17 shall be filed in Form VIII. Relevant portion of Rule 32 is reproduced below :- Rule 32 Registration of Dealers- (1) For the purpose of obtaining registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4th February, 2010. The amended rules is as follows :- (1) For the purpose of obtaining registration certificate under the Act, the dealer shall present application in Form VII-G in case of Government Department and in Form VII in other cases, as the case may be, completed in all respects before the Registering Authority of the Circle in which principal place of his business is situated. (2) Each registration application shall be accompanied by satisfactory proof of deposit of the fee along with the late fee, if any, and penalty specified in the Act, where payable and certified copy of any two of the following : (a) Electoral Identity Card issued by Election Commission of India; (b) PAN Card issued by Income Tax Department, Government of India; (c) Passport; (d) Bank Passbook PROVIDED that the registering authority shall not accept incomplete application for registration. (3) Application, referred to in sub-section (5) of section 17 shall be presented by the dealer before the registering authority in Form VIII along with annexure completed in all respect. (4) ------------------------------ (5) ------------------------------ (6) ------------------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1 to the writ petition. Thus, by virtue of section 17(3), he shall be deemed to be a registered dealer w.e.f. 1st January, 2008, under the new Act. 14. Anil Kumar Kesarwani, alongwith Form VIII also filed application in Form VII alongwith requisite fee of ₹ 100/- for grant of registration for the subsequent period. It appears that though the aforesaid application was complete in all respect but it remained pending with the department and formal order for registration was not passed. It further appears that in the meantime, Anil Kumar Kesarwani died on 4th June, 2009 in a car accident and thereafter when his widow, petitioner herein, made insurance claim on 7th October, 2010, the respondent department woke up and issued a registration certificate on 18th September, 2010 in Form XI which was made valid w.e.f. 26th January, 2005 till 4th June, 2009. Evidently, the registration certificate in Form XI was made valid from 26th January, 2005 in view of registration of Anil Kumar Kesarwani, under the old Act. 15. The question which arises for consideration is whether the registration certificate granted by the Registering Authority on 18th September, 2009 stands vitiated or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n documents and requisite fee without getting biometric verification done. This goes to show that provisions in this regard are not mandatory nor a pre-requisite for registering a dealer under the Act. Section 17(1) read with rule 32(7) further indicates that the requirement of obtaining biometric data has been provided only in case of a new dealer. The aforesaid provision further shows that the pre-requisite for filing such application by a new dealer relates to deposit of registration fee and submission of one of the document relating to his identity specified in Rule 31(2). The application thereafter is treated to be complete in all respect. The proviso to sub rule (2) of Rule 32 prohibits the Registering Authority from receiving incomplete application for registration. Admittedly, application was duly accepted being complete in all respect. Thereafter processing of the application takes place at the end of the department. Rule 32 (7) provides for the various steps to be taken by the department which interalia provides for obtaining biometric data,carrying out inspection of the site and digital photograph of the premises etc. etc. These formalities are to be carried out by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has rightly challenged the order issued by the department, containing reasons for declining her claim. Thus, opposition to the writ petition on this ground, also cannot be sustained. 21. The next submission of the learned counsel for the respondent that allowing the writ petition will amount to enforcing the contract of Insurance also does not appear to be correct. Firstly, there is no contract of insurance between the petitioner and the Insurance Co. The department has granted Group Insurance to all registered dealers. The contract for settling claim is between the department and the Insurance Co. The petitioner is putting the claim on account of her deceased husband being a registered dealer under the erstwhile and the present Act. Secondly, there are no factual disputes and only legal provisions are required to be interpreted. The Supreme Court in ABL International Ltd. Anr vs Export Credit Guarantee Corporation Of India Limited others reported in (2004) 3 SCC 110 has held that there is no straight jacket formula to relegate a person to alternative remedy. The Apex Court after examining its earlier decision in K.N. Guruswamy v. State of Mysore AIR 1954 SC 592 held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, we find that since there are no disputed questions of fact and because the claim for Insurance on the death of the husband of the petitioner, will provide financial help to her and is a measure by way of social-economic justice and therefore, this Court will be failing in its duty in case the petitioner is relegated to the alternative remedy of filing a suit. We, therefore, over-rule the objection regarding maintainability of writ petition raised by the counsel for the respondents and hold that the instant writ petition is perfectly maintainable. 23. In the result, the writ petition succeeds and is allowed. The decision of the Insurance Co. as contained in the letter of the Dy. Commissioner, Trade Tax, Division-13, Allahabad dated 23rd June, 2011 is hereby quashed. The Insurance Co., respondent no. 2 is directed to forthwith settle the claim of the petitioner. In terms of clause (iv) of the Insurance scheme as contained in Annexure 2, the petitioner shall be also entitled to interest @ 14% per annum, after expiry of one month from the date claim was lodged till date of actual payment. The petitioner shall also be entitled to get ₹ 10,000/- as the cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
