9911796707
TMI Blog2004 (5) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered dealer under the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") and carries on the business of manufacture and sale of atta, maida and suji. It claimed itself a new unit within the meaning of section 4-A of the Act and applied for the grant of eligibility certificate, granting exemption from payment of trade tax. The eligibility certificate was ultimately granted on May 25, 2000 by the Divisional Level Committee vide annexure No. 3 to the writ petition. The said eligibility certificate has been granted for the period January 16, 1995 up to January 15, 2004. During the pendency of the application for grant of the eligibility certificate the assessing authority vide its order dated March 31, 1998, imposed a tax liability of Rs. 15,06,290.88. Similarly for the assessment year 1996-97 it created a tax liability of Rs. 40,26,754 vide order dated May 27, 1999. These orders were challenged before the first appellate authority, who ultimately reduced the tax liability for the assessment year 1995-96 but the appeal for the assessment year 1996-97 was allowed and remanded to the assessing authority vide order dated July 9, 1999. The petitioner challenged the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Challenging the aforesaid orders the present writ petition has been filed. 4.. Heard the counsel for the parties and perused the record. Before proceeding further it is necessary to refer section 30(3) of the Act which was inserted by U.P. Act No. 31 of 1995, and came into force on May 14, 1994. It reads as follows: "(3) If a dealer is granted an eligibility certificate under section 4-A for the period for which an order of assessment or reassessment or an order in appeal has been passed prior to the grant of eligibility certificate, such order may be set aside either on its own or on the application of the dealer, by assessing or appellate authority having jurisdiction within one year of the receipt by him of the copy of the order granting such eligibility certificate or March 31, 1995, whichever is later, and a fresh order may be passed according to law: Provided that where the application under this sub-section has been made by the dealer within the period aforesaid, it may be disposed of even beyond such period." 5.. A bare perusal of the aforesaid section shows that a right has been given to a dealer who has been granted the eligibility certificate under section 4-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no difficulty in coming to the conclusion that a Tribunal does not possess power to entertain and decide an application under section 30(3) of the Act. 8.. Now the question which immediately falls for consideration, in the facts of the present case is, what should be done by a dealer when the assessment order has been subject-matter of second appeal before the Tribunal. If the theory of the merger is accepted the application in such circumstances cannot be filed before the appellate authority also. To answer the above question resort can be made to section 22 of the Act. Section 22 of the Act gives power to any officer or authority or the Tribunal or the High Court to rectify mistakes on its own motion or on the application of the dealer or any other interested person. A conjoint reading of section 22 with section 30(3) of the Act shows that section 30(3) of the Act does not in any way control or abridge the power of Tribunal or the High Court to rectify any mistake in any order passed by the Tribunal or the High Court under the Act apparent on the record within three years from the date of the order sought to be rectified. The field of operation of section 30(3) is very limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f grant of eligibility certificate would become meaningless. It is a matter of common experience and knowledge that the grant of eligibility certificate consumes a considerable period of time and the assessing authority without waiting for the final outcome of the application of the eligibility certificate passes assessment orders so that the assessment order is passed within the prescribed period of limitation. There is no provision under the U.P. Trade Tax Act for extending the period of limitation for framing an assessment order by excluding the period during which the application for grant of eligibility certificate remains pending. The grant of eligibility certificate is not a mere formality and its meaningful purpose and object is to promote the industry in the State of U.P. Taking into consideration all these factors it is reasonable to conclude that the Tribunal can rectify its earlier order so that it may be in consonance with the order granting eligibility certificate. 12.. This conclusion can be arrived at from a different angle also. The idea of granting suo motu power to the assessing and the appellate authorities and not prescribing any period of limitation is to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power. A Full Bench judgment of this Court in Ramakant Singh v. Deputy Director of Consolidation, U.P. AIR 1975 All. 126 has held that even if the revision filed under section 48 of the U.P. Consolidation of Holdings Act was barred by time, the Deputy Director of Consolidation, after the record has been called for, should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. 15.. Again the Supreme Court in the case of Vijayabai v. Shriram Tukaram (1998) 8 JT 105 has held the purpose of grant of suo motu power in the following word: "Every exercise of suo motu power explicitly or implicitly reveals to correct an error crept in under a statute, what ought to have been done was not done or which escaped the attention of any statutory authority, or error or deliberate omission or commission by the subject concerned requires correction, of course, within the limitation of any under such statute. This has to be based on some relevant material on record, it is not omnipower to be exercised on the likes and dislikes of such an authority. Though such a power is a wide power but has to be exercised with circumspection within the limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int and appeal can be invoked. Though strictly speaking these statutes are not applicable as the U.P. Trade Tax Act is self-contained Act but the principle of return of document and plaint by a court having no jurisdiction for presentation before an appropriate court or forum, and exclusion of time spent from the date of presentation before the wrong court up to the return of the plaint or appeal are based on principle of fair play and justice. These principles are well-known from the ancient time. It is fairly settled that every procedure is permitted, unless expressly prohibited by law. 19.. To err is human and the courts are meant to do justice and are not meant to punish a person for human err committed inadvertently. 20. The learned Standing Counsel in opposition of the writ petition could only reiterate the reasoning given by the authorities below in the impugned orders. He could not show me anything otherwise to take a different view of the matter. 21.. In the result the writ petition is allowed. The impugned orders dated May 5, 2003 annexure 11 to the writ petition and the order dated July 15, 2002 annexures 7 and 8 to the writ petition are quashed. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
