9911796707
TMI Blog2019 (10) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... having not been exercised, it was neither for the assessing authority nor for the first appellate authority to sit in judgement over the same or to deprive the assessee of any part of the exemption already granted by the Divisional Level Committee. In that context and regard, the assessing authority as also the first appellate authority, were purely executing authorities, that had to give full effect to the Eligibility Certificate duly granted by the competent authority namely Divisional Level Committee - answered in the negative i.e. completely in favour of the assessee and against the revenue. Whether the Trade Tax Tribunal is legally justified in law in confirming the orders passed by Authorities below rejecting the books of account of revisionist without any incriminating material available to him? - HELD THAT:- Plainly, the books of account had been rejected for varied reasons that have been noted and considered by the Tribunal as well. That being a question of fact and findings recorded thereon being based on material and evidence on record, it does not call for any interference by this Court in exercise of revisory jurisdiction - answered in the affirmative i.e. in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Noida granted the Eligibility Certificate to the assessee in relation to the aforesaid new unit set up by it, for a period of eight years from the date of its first sale, being 14.06.1996. According to Clause 10 of the said certificate, the assessee was granted full exemption from tax for the first two years. For the third and fourth years, it was granted exemption to the extent of 75% of the tax liability. For the fifth and the sixth years, it was granted exemption up to 50% of the tax liability and for the seventh and the eighth years, it was granted exemption up to the extent of 25% of the tax liability. 4. It is a fact that the assessment proceeding of the assessee for the A.Y. 1999-2000 (U.P. Central) came to be completed much thereafter, on 20.02.2003. Therein, the assessee relied on the Eligibility Certificate dated 05.02.1998, and thus claimed exemption up to 75% of the tax liability, treating A.Y. 1999-2000 to be the third/fourth year of exemption. Perusal of the assessment order further reveals, that the Assessing Authority, though acknowledged the entitlement to exemption claimed by the assessee under the Eligibility Certificate da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to exemption under Part-II of Annexure 1 to the exemption notifications. In that regard, the Tribunal has relied on a decision of this Court in Mentha Oil and Allied Product Vs. State of U.P. (1996)103 STC 316 . Thus, the Tribunal has further reasoned, the amendment made to the exemption notification would automatically attach to and have the effect of amending the Eligibility Certificate granted by the Divisional Level Committee. 6. As to the rejection of books of account, the Tribunal has again affirmed the finding of the first appellate authority. Learned counsel for the assessee has first relied on the Annexure No.1 Part-I Clause-3 of the exemption notifications and Clause 3(1) of Part-II of that notification. He would submit while issuing the exemption notifications, the State Government had provided for separate schemes for grant of exemption to new units engaged in manufacture of electronic goods and those engaged in manufacture of other goods. However, upon filing its application for grant of exemption, the Divisional Level Committee i.e. the only competent authority granted exemption to the assessee vide Eligibility Certificate dated 05.02.1998. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to it. The Divisional Level Committee, by it's order dated 20.02.2003 made an observation that the assessee was entitled to exemption in terms of Part-II, Clause 3(1) of the exemption notifications i.e. treating the assessee to be a manufacturer of electronic goods. This order passed by the Divisional Level Committee is claimed to be wholly without jurisdiction and a nullity, inasmuch as, neither the assessee had any right to file any application seeking such clarification or modification nor the Divisional Level Committee had any jurisdiction to modify the Eligibility Certificate already granted by it. 10. The power, if any, would have remained with the Commissioner [under Section 4-A(3) of the Act], to cancel or to amend the Eligibility Certificate already granted, if that authority had formed a view, that the assessee was entitled to lesser exemption than that granted by the Divisional Level Committee. However as to its power, the another Division Bench of this Court in M/S Gurunanak Surgical Pvt. Ltd., Meerut Another Vs. Divisional Level Committee, Sales Tax, Meerut, 1991 U.P.T.C. 620, had specifically held that the Divisional Level Committee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on its own application. Further, it has been submitted, no remedy having been availed by the assessee against that order, inasmuch as the assessee did not file any appeal before the Tribunal, it cannot resist the direct legal consequences of the order dated 20.02.2003, which has attained finality. 13. Having heard learned counsel for the parties and having perused the record, under Section 4-A of the Act, Annexure 1, Part-I Clause-3 of the exemption notifications and Clause 3(1) of Part-II of that notification read as under:- 14. Then a new unit could claim exemption subject to the terms and conditions of the Act read with the U.P. Trade Tax Rules, 1948 (hereinafter referred to as the Rules) and the exemption notifications that came to be issued by the State Government. The plain scheme of the Act (as may be culled out from Section 4-A(5) read with Rule 25 of the Rules) unequivocally provides, for a claim of exemption to arise, the application must be made by the new unit in the prescribed form before the appropriate committee constituted by the State Government in terms of Rule 25. Undisputedly, under Rule 25(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rules would have been available - to file a review application before the same committee. That situation never arose. Third, upon amendment made to the Act, sub-section (3) was introduced where under the Commissioner was given the power to cancel or amend the Eligibility Certificate, if in his opinion, the facility of exemption or reduction from the rate of tax had been obtained upon any legal or factual error or if the assessee was found not entitled to facility of exemption or was found to be entitled to that facility for a lesser period from a different date. Other than the above three contingencies, neither the Act nor the Rules nor the notifications, would allow for any alteration or modification or cancellation in the Eligibility Certificate, once granted. 17. Clearly, in the facts of the case, since the original exemption application filed by the assessee had been allowed (and not rejected), by the Divisional Level Committee, by its order dated 05.02.1998, there never arose any remedy to the assessee to apply for review in terms of Rule 25(3)(c) of the Rules. Therefore, the application that came to be filed by the assessee after grant of Eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction . 19. Same position of law inheres in the ratio of the Division Bench pronouncements of this Court in the case of M/S Gurunanak Surgical Pvt. Ltd., Meerut Another Vs. Divisional Level Committee, Sales Tax, Meerut (supra) as specifically applied in the case M/S Newage Printing Ink Company Meerapur, Allahabad Another Vs. State of U.P. Others (supra) . It that case, the Divisional Level Committee had reduced the period of exemption from five years (under the Eligibility Certificate), to three years by subsequent order of the Divisional Level Committee. It was found to have done so without any power to cancel or modify the order granting Eligibility Certificate. The same principle would govern the present case and no different conclusion may be drawn herein. 20. The consequence of the above would be - the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, no question of acquiescence or consent can affect the decision. 21. Relying on the aforequoted principal, the Supreme Court in Jagmittar Sain Bhagat And Others v. Director, Health Services, Harayana And Others, (2013) 10 SCC 136 , held: 9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a court/tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The court cannot derive jurisdiction apart from the statute. In such eventuality the doctrine of waiver also does not apply. (Vide United Commercial Bank Ltd. v. Workmen [AIR 1951 SC 230] , Nai Bahu v. Lala Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t statutory schemes, reliance placed by the Tribunal on the decision of the Division Bench in Mentha Oil (supra), is wholly erroneous. 24. The only power that may have remained with the revenue would have been under Section 4-A(3) of the Act, whereunder the Commissioner may have modified the Eligibility Certificate issued by the Divisional Level Committee vide its order dated 05.02.1998. That power having not been exercised, it was neither for the assessing authority nor for the first appellate authority to sit in judgement over the same or to deprive the assessee of any part of the exemption already granted by the Divisional Level Committee. In that context and regard, the assessing authority as also the first appellate authority, were purely executing authorities, that had to give full effect to the Eligibility Certificate duly granted by the competent authority namely Divisional Level Committee. Consequently, question of law no.1 is answered in the negative i.e. completely in favour of the assessee and against the revenue. 25. Insofar as the second question is concerned, plainly, the books of account had been rejected for vari ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
