9911796707
TMI Blog2009 (8) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... 1256 of 2006 - - - Dated:- 26-8-2009 - AGRAWAL R.K. AND GUPTA S.K. , JJ. The judgment of the court was delivered by S. K. GUPTA J. Since similar questions are involved in these aforementioned writ petitions, they are, with the consent of the parties, being taken up together and disposed of by a common judgment and order. Civil Misc. Writ Petition No. 1256 of 2006 is being treated as the leading writ petition and therefore its brief facts are being given below: These writ petitions have been filed, inter alia, for the following reliefs: (1) Issue a writ, order or direction in the nature of certiorari quashing the impugned circular dated January 20, 2006 issued by the Commissioner of Trade Tax, U.P., Lucknow (annexure 2 to the writ petition). (2) Issue a writ, order or direction in the nature of mandamus directing respondent No. 3 to issue the requisite form XXXI to the petitioner as and when the same are required without asking any security. The petitioner is engaged in trading of all kinds of iron and steel and is assessed by the assessing authority, respondent No. 3, Assistant Commissioner of Trade Tax, U.P. Respondent No. 2, the Commissioner of Trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and is liable to be struck down. It has further been submitted that section 8C(3A) provides that the Commissioner can pass a general order in writing charging cash security from a dealer of notified commodity but in the present case the order of the Commissioner is not generally applicable but is applicable to those dealers who are registered after March 31, 2001. Therefore, the circular issued by the Commissioner is in contradiction of section 8C(3A). The learned standing counsel on the other hand has supported the impugned circular and has contended that neither the circular is arbitrary nor discriminatory. He has further contended that the impugned circular has been issued by the Commissioner in accordance with the section 8C(3A) of the Act and the rates fixed by the Commissioner in the circular has a rational basis. Heard Sri Praveen Kumar, learned counsel for the petitioner and learned standing counsel appearing on behalf for the respondents and perused the record. To appreciate the contention of the parties it will be useful to refer to section 8C(3A) of the U.P. Trade Tax Act, 1948 which reads as under: 8C. Security in the interest of Revenue. (1) to (3) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Z section, etc. Rs. 23,000 920 Sheets, strip, steel tube, wire, etc. Rs. 30,000 1,200 Considering the fluctuations and other factors the aforesaid committee proposed security amount per M.T., at the rate of Rs. 450, Rs. 750, Rs. 1,000 and Rs. 1,200, respectively for the abovementioned four categories. The amount of cash security as proposed by the committee was considered and accepted by respondent No. 2 and thereafter, the impugned circular/general order dated January 20, 2006 was issued. A true copy of the minutes of meeting dated January 5, 2006 of the committee constituted by respondent No. 2 is annexed herewith and is marked as annexure No. 1 to this counter-affidavit. Therefore, the rates of the notified goods have been fixed by respondent No. 2 as provided in the circular dated January 20, 2006 on the basis of the prevalent market rates between 16th November to 30th November, 2005 of different categories of iron and steel fixed by the committee, consisting of senior officers of the Trade Tax Department, after collecting the rates from the reputed manufacturers like M/s. TISCO and M/s. Steel Authority of India, Kanpur and thereafter on the basis of the said datas, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng estimated evaded taxable zone wise sale of iron and steel clearly indicates that the evasion of tax is more rampant in the recent past years preceding the issuance of circular. Therefore, the authorities were of the view that the old sellers who are in business since quite a long time have earned goodwill and are more tested in comparison to the dealers who have been registered just a few years back, preceding the date of the issuance of the circular. In the case of University Grant Commission v. Sadhana Chaudhari [1996] 10 SCC 536, the apex court has observed that the choice of a date as a basis for classification cannot always be arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances when fixing a line of the point is necessary and there is no mathematical or logical way of fixing it precisely. The cogent and convincing reasons have been assigned by the respondents in fixing the cut-off date April 1, 2001. It is for the Government to decide the cut-off date as a part of executive policy and the reasons assigned by the respondents cannot be said to be arbitrary or violative of article 14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has not already been made by the petitioner to obtain fresh declaration forms. The learned counsel for the petitioner has relied upon the decision of Girraj Stone Crusher Private Limited, Agra v. Commissioner of Trade Tax [2003] 131 STC 523 (All); [2003] UPTC 241 wherein it has been held that cash security for issuance of a form XXXI must have reasonable nexus to the tax payable on the sale of goods for which form XXXI is required. Circular demanding Rs. 530 per form was held to be wholly arbitrary, unreasonable and without any nexus to the tax liability. We have already discussed hereinearlier that the rate and the security fixed by the respondents, in the present case is not at all arbitrary or unreasonable and rational basis have been provided by the respondents while fixing the rates and securities therefore the aforesaid authority cited by the petitioner has no bearing on the case in hand. Even in the case of Girraj Stone Crusher Private Limited [2003] 131 STC 523; [2003] UPTC 241 this court has upheld the power of the Commissioner of Trade Tax to adopt any reasonable and rational method for demanding cash security under section 8C(3A) of the Act. There should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally applicable but is applicable to all those dealers who are registered after March 31, 2001, therefore, the circular issued by the Commissioner dated January 21, 2006 is in violative to section 8C(3A) of the Act. This argument of the petitioner is also misconceived and wholly untenable. The section 8C(3A) of the Act provides that the Commissioner may, in respect of any goods notified by the State Government in this behalf by a general order in writing, direct that the cash security of such amount shall be required to be furnished by a dealer. Therefore, the emphasis is on the notified goods and the general order is in respect to notified goods for which the rate as well as security has been fixed. It is not being disputed that under section 8C(3A) of the Act, the Commissioner has the power to direct the dealer to furnish a cash security for issuance of declaration forms in respect of particular goods, which power has been upheld by this court in several cases. Moreover, it starts with non obstante clause and thus it gives an overriding power to the Commissioner to direct that a cash security shall be required to be furnished by a dealer. The plea that it is not a general ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
