Chand Tara Sugar Factory vs The Assistant Sugar Commissioner and The Khandsari Inspector/Assessing Officer

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The petitioner manufactures Khansari Sugar in its unit known as M/s Chand Tara Sugar Factory situated in village Taklarrabpur Israj Kheri, Basikiratpur, District Bijnor.

For the purposes of payment of the amount of purchase of tax as required u/s 3 of the U.P. Sugar Cane (Purchase Tax) Act, 1961 (hereinafter referred to as the Act) the petitioner for the assessment year 1988-89 exercised his option by way of declaration in Form 13 as required under Rule 13A of the Rules known as U.P. Sugar Cane (Purchase Tax) Rules, 1961 framed under the Act (hereinafter referred to as the Rules).

The option form was submitted by the petitioner to the Sugar Cane Commissioner, Assistant Sugar Commissioner and the Assessing Officer.

In the option form the petitioner also provided the details regarding specification of the machineries and the bales to be used by him in the unit in manufacture of Khandsari Sugar and also made payment of the amount of purchase tax in lump sum as required in Schedule-I of the Rules for the assessment year 1988-89 which was accepted by the authorities aforesaid.

The contention of learned Counsel for the petitioner is that nothing was found contrary to the details as given by the petitioner with regard to the machineries and bales mentioned in his option form, yet respondent No. 2 without giving any notice and opportunity of being heard to the petitioner, illegally and arbitrarily made re-assessment of the amount of purchase tax on the basis of the actual quantity of the sugar purchased and crushed by the petitioner in his unit, by illegally rejecting the option exercised by the petitioner vide its judgment and order dated 3.6.89 which is impugned in the present writ petition. The aforesaid dated 3.6.89 respondent No. 2, the Khandsari Inspector/Assessing Officer, Bijnor was challenged in appeal before respondent No. 1, the Assistant Sugar Commissioner, Bijnor who has also illegally and arbitrarily without considering the submissions made on behalf of the petitioner has dismissed the same vide order dated 11.5.2001.

Aggrieved by the aforesaid orders dated 3.6.89 and 11.5.2001 passed by respondent Nos. 2 and 1 respectively the petitioner has filed the present writ petition challenging the validity and correctness of the aforesaid orders on the ground that according to the provisions contained u/s 3(1-b), the option once exercised shall be irrevocable for that assessment.

It is submitted that as the petitioner admittedly has made payment of the sugar cane purchase tax according to the option exercised by him under the provisions of the Act and the Rules framed there-under; there being no dispute in respect of the same, therefore, the respondents were not justified in passing the impugned orders directing to make the re-assessment of the purchase tax on the basis of quantity of sugar cane purchased by the petitioner in Khandsari unit in the assessment year 1988-89.

It is stated that the Assessing Officer has been authorized under Rule 15 of the Rules framed under the Act to examine the returns which are submitted under Sub-rule 1 of Rule 14 after I Giving opportunity of being heard to the assessee. The petitioner I admittedly exercised option in the assessment year in dispute which is irrevocable, therefore, the provisions of Rule 15(1) of the Act are not applicable to the procedures prescribed under Rule 13A for making the payment of the amount of purchase tax as such the orders passed by the respondents are illegal, arbitrary and without jurisdiction.

It is next contended by the learned there is provision either under the Act or the Rules framed thereunder for re-assessment of the amount of purchase tax fixed according to the provisions contained under Rule 13A of the Act, as such, the orders passed by the respondents are not justified. In this regard, learned Counsel for the petitioner has placed reliance upon Schedule I of the Rules 13A which provides that the average monthly assumed purchase of sugar cane to be fixed on the basis of the description of the machineries; that there is no provision under the Act and the Rules, in case the quantity of the sugar cane purchased by the assessee is not according to the assumed purchase of sugar cane according to the capacity of the machineries, then the reassessment can be made on the basis of the actual purchase of sugar cane. It is also stated that this aspect of the matter has not been considered by the authorities while passing the impugned orders.

It is submitted that admittedly the finding recorded by the respondent Nos. 1 and 2 that the machineries of the petitioner which are mentioned in Form 13 were used in the disputed assessment year, which is also established on the basis of the inspections made by the respondents.

It is urged that there is no other evidence in rebuttal on the basis of which it can be said that the petitioner has used any other type of machinery in the disputed assessment year. Therefore, the findings recorded by respondent Nos. 1 and 2 are not based on any evidence and are perverse. There is no provision under the Act and the Rules, which imposes any restriction to purchase and crush more sugar than the monthly assumed quantity of sugar cane, therefore, in view of the said fact, even assuming without admitting that the petitioner has purchased more quantity of sugar cane and crushed the same by the same machinery which is mentioned in form 13, even then it can not be said that the petitioner is liable to make payment of any amount of purchase tax on the basis of the quantity of the sugar cane purchased by him in the disputed assessment year.

It is also submitted that according to the provisions contained under Rule 13A of the Act, there is a penalty Clause which provides that it is mandatory for the assessee to make the payment of the purchase tax which is payable according to the provisions made under the Act for 30 days, either the unit of the assessee worked or not in the whole month or it worked for few days in the whole month, hence the said fact clearly shows that there is no restriction and there can not be re-assessment of the amount of purchase tax under Rule 15 of the Rules framed under the Act; that the findings recorded by the respondents related to the machinery other than the machinery which is mentioned in form 13 submitted by the petitioner is based on surmises and conjectures. There is no specific evidence on the basis of which it can be said that the petitioner has used the machinery which is not mentioned in form 13 submitted by him.

It is lastly submitted that the principle of estopple will not come into force because throughout the assessment year, the respondents have inspected the unit of the petitioner and have not found any technical variation change in the machinery used by the petitioner as has been detailed by it in form 13, hence they an not raise any objection on this ground for making re-assessment on basis of surmises and conjectures.

It is vehemently urged that the respondents have neither taken any action for suspension or cancellation of the licence of the petitioner nor any complaint has been made by the authorities in this regard that the petitioner did not use the machinery which is mentioned by it in form 13 under the provisions of U.P. Khandsari Sugar Manufacturers Licensing Order, 1967. It is stated that the respondents have illegally and arbitrarily failed to consider the certificate issued by the General Manager (T), District Industry Office, Bijnor on the basis of which it can be said that the size of the power crusher and the bale used in the unit of the petitioner have more capacity than as it has been mentioned in Schedule-I of the Rules framed under the Act.

The Standing Counsel appearing for the respondents has placed reliance upon Sub-paragraphs (a) and (b) of paragraph 3 of the counter affidavit which read as under:

(a) that the option of the petitioner under Rule 13-A read with Section 3(1) of the U.P. Sugar Cane ( Purchase Tax) Act, 1961 was rejected on the ground that the declaration made by him is incorrect in view of the facts that schedule-l under Rule 13-A of the Rules provides for average monthly purchase of sugar cane for the purpose of option for payment in lump sum purchase tax under the aforesaid rules and such assumed purchase in the case of the petitioner according to information disclosed is 11,500 quintals. On examination of record, it was found that the petitioner has shown crushing of sugar cane of 2,67,231.94 quintals for the whole season of the year 1988-89, whereas according to schedule the assumed average monthly purchase of sugar cane comes only 69,382.34 quintals. Therefore, under the facts and circumstances of the case and on the basis of material available on record, the Assessing authority came to the conclusion that the petitioner has used some special type of Bhatthi resulting in such a high crushing and as such the information disclosed by him in his return filed under Rule 15(2) of the Rules was incorrect and as such the application under Rule 13-A read with schedule-l was incorrect and as such the option was rejected.

(b) That against the said order the petitioner filed an appeal u/s 3 of the Act and vide order dated 11.5.2001, the appeal of the petitioner was rejected after recording findings of facts. It is also relevant to mention that the order in the aforesaid appeal was passed in pursuance to the directions given by this Court in Civil Misc. Writ Petition No. 4808/2001. Thus the question of crushing of sugar cane much in excess of the quantity specified under schedule 1 and the declaration made by the petitioner as per Rule 13-A being undisputedly wrong is outside the purview of the option scheme provided under Rule 13-A of the Rules and the normal made of the assessment has been rightly invoked by the Assessing Authority and has rightly been upheld by the Appellate authority. The controversy in the instant writ petition raised by the petitioner being concluded by finding of fact, the jurisdiction of this Court under Article 226 of the Constitution is not invocable and as such the instant writ petition is liable to be dismissed.

He next submits that in fact the instant writ petition is the third writ petition filed by the petitioner on the same facts; that the earlier writ petition No. 997/89 and 4808/2001 were dismissed by this Court vide judgment and order dated 16.1.2001 respectively and that it is only pursuant to the aforesaid decision in the writ petition that the appeal of the petitioner has been decided.

Learned Standing Counsel further submits that the purchase tax has rightly been assessed with the impugned order dated 11.5.2001 hence the instant writ petition is totally misconceived and the same is liable to be dismissed. He has then relied upon the averments made in paragraph 10 of the counter affidavit in which it has been admitted that the petitioner had exercised the option for assessment year 1988-89 as provided under Rule 13-A of the Rules but notice No. 361 dated 3.5.89 was issued to the petitioner on the basis of the examination of record to show cause as to why his option application be not rejected and thereafter the assessment order dated 3.6.89 was passed in accordance with law.

It is stated that on inspection though the dimension of the crusher and the Rohelkhand Bhatthi being used by the petitioner were found to be in accordance with option application of the petitioner. Crushing by such standardized machineries can not exceed to the extent of double the standard of production fixed by one of such standard machineries. The Rohilkhand Bhatthi has been defined under the U.P. Sugarcane (Purchase Tax) Act, 1961 is as under:

"2(i) Rohilkhand type bel" means a set of open pans comprising up to five pans commonly used for boiling juice of sugarcane and capable of handling juice from hundred and twenty quintals or less of sugarcane per day.

He has vehemently urged that on the basis of examination of record it was found that for the month of April, 1989 the monthly average the crushing of sugarcane was shown by the petitioner as 1793 quintals per day whereas the standard crushing capacity of Rohilkhand Bhatthi is 120 quintals per day under Rule 2(i). Therefore, he submits that from 8 installed Rohilkhand Bhatthi by the petitioner as per option form the maximum total capacity of the petitioner unit comes to 960 quintals per day from crushing of sugarcane whereas the petitioner had shown that he had crushed more than double the capacity of sugarcane as mentioned above.

It is not denied by the department that the petitioner had submitted returns in form7-Ka every month but the objection is that they were not submitted in time resulting in the availability of correct figures of crushing of sugarcane only after end of the season.

It is pointed out by the Standing Counsel that several returns were submitted late by the petitioner, hence the benefit of the option under Rule 13-A of the Rules was not admissible to the petitioner for this reason and therefore it can not be contended by the petitioner that no objection was raised as to returns. The undisputed facts remains that the benefit of option was not available to the petitioner for the reason that from its own record it is revealed that output of more than the limits of the machinery as provided in Schedule-I .Rule 13-A of the Rules could not have been possible unless and until some technical changes were made with the machinery and the Bhatthi.

According to the Standing Counsel the purchase tax submitted by him was therefore rightly rejected in accordance with law.

As regards notice it is stated that the petitioner he did not appear before the authorities inspite of service of notice and that the appeal was decided on merit after giving sufficient opportunity of being heard to the petitioner as directed by the High Court.

It is lastly urged that without making any technical changes in specification of the machinery used as given in Schedule-I Rule 13-A, it was not possible to double production from a machinery which is itself manufacture according to its specification, hence the petitioner is not entitled to the benefit as claimed by him and re-assessment has rightly been made in the case of the petitioner. In the facts and circumstances of this case and that the controversy in question is concluded by finding of fact and the petitioner has failed to point out any illegality in the impugned order which is impugned in the present writ petition, does not require any interference by this Court.

I have considered the arguments of the learned Counsel for the parties.

The following Rule 13-A provides for payment of tax by owner exercising option which reads as under:

13-A(1) The option referred to in proviso to Sub-section (1) of Section 3 of the Act hereinafter called "the option" shall be exercised by the owner of a unit by way of declaration in Form XIII, which shall be sent under registered cover to the Sugar Cane Commissioner, the Assistant Sugar Commissioner and the Assessing Officer so as to reach them 15 days before the start of the unit. In such declaration the owner shall specify the date from which he decides to start the working of his unit.

Rule 14 of the Rules provides for return of cane and purchase of tax which reads as under:

14(1) The owner of a unit, other than a owner exercising option, shall submit to the Assessing Officer before the twelfth day of each calendar month a return in Form VII showing the quantity of sugarcane purchased by him during the preceding month, the amount of tax due and the amount of tax deposited by him under Rule 13 in respect of such sugarcane together with the treasury receipt indicating the deposit.

(2) The owner of a unit exercising option shall submit to the Assessing Officer, within three days of the deposit of the amount of tax, a return in form VII showing the amount deposited by him and the month for which it is paid together with the treasury receipt indicating the deposit.

These returns under Rule 14 above are to be submitted timely under Rule 15 of the Rules. Schedule I under Rule 13-A provides for specification of the machinery to be used i.e. the category of the power crusher, size of power crusher in category, Hydraulic, Non-Hydraulic spring loaded device and for Average monthly assumed purchase of sugarcane (quintals) as per capacity.

Form Annexure-3 to the writ petition it is apparent that in I the year 1988-89 the petitioner had shown sugarcane of purchase for a sum of Rs. 69,383.34 paise whereas total 2,67,231.94 quintals sugarcanes had been purchased for the petitioner unit which could not have been commenced by the unit of the petitioner with machinery of Rohelkhand type Bhatthi specified in the schedule what to say doubling the production with the said machinery. The price of the sugarcanes are prescribed u/s 3(1)(b) of the U.P. Sugar Cane (Purchase Tax ) Act, 1961 read with Section 11(A) of the Act which provides that-

The State Government may presume the quality of sugarcane which shall be assumed for the purpose of the proviso to Sub-section (i) to have been purchased of the owners of different categories of units having regard to this crushing capacity of the units and other relevant factors.

With the passage of time and advancement in machinery the U.P. Sugarcane Purchase Rules, 1981 were amended w.e.f. 28.3.82 to the effect that the capacity and category of power of crusher is based on slabs system.

The relevant extract of the order dated 3.6.89 is as under:

vkidh l= 1988&89 dh xUuk dz; dj i=koyh dk voyksdu djus ls Kkr gqvk fd bdkbZ dks fnukad 14-11-88 ds fnuakd 24-4-89 rd pyk;k x;k gS rFkk vki }kjk izsf"kr ;kaf=d fooj.k :i i= ds vuqlkj bdkbZ ij xUuk [kjhn ,oa fijkbZ dh ekgokj fuEu gSA

Ekkg dk uke

xUuk [kjhn dh ek=k

xUuk fijkbZ dh ek=k

vDVwcj 88

uoEcj 88

fnlEcj 88

tuojh 1989

Qjojh 89

EkpZ 89

vizSy 89

&&&&&&&&&&&&&&&

27]190]57

51]149-50

44]976&33

45]267&68

55]936&57

39]711&31

&&&&&&&&&&&&&&&&

19]800-00

55]000-00

42]600-00

50]800-00

56]000-00

43]031-94

;ksx&

2]67]&94

2]67]231-94

bl izdkj vkius i= l= 1988&89 esa 89]383]34 :i;s xUuk dz; dk Hkqxrku fd;k gS tc fd lw= esa bdkbZ ij 2]67]231]94 dq0 xUuk [kjhn dj iSyk x;k gS bl izdkj mDr vkadM+ksa ds vuqlkj izfr dqUry xUuk [kjhn dh nj yxHkx 25 iSlk gh vkrh gS tc fd mRrj izns''k xUuk �dz;dj� vf/kfu;e 1961 ^^v/;koof/k �la''kksf/kr dh /kkjk� �3� �1� ch- ds vUrxZr xUuk dz; dj dh ,d izfr dqUry fu/kkZfjr dh x;h gS ftldk mi/kkjk 11�,� esa fn;s x;s funsZ''k ds vuqlkj& The state Government may presume the quality of sugar cause which shall be assumed for the purpose of the proviso to Sub-section (i) to have been purchased by the owners of different categories of units having regard to this crushing capacity of the units and other relevant factors.

e''khujh ds vk/kqfudhdj.k ds dkj.k vkSj fjgkbZ n{krk esa lq/kkj gksus ds dkj.k vkSj fiykbZ {kerk esa lq/kkj gksus ds dkj.k vkSj fijkbZ {kerk esa lq/kkj gksus ds dkj.k mRrj izns''k xUuk dz; dj fu;ekoyh 1981 ds fnukad 28-3-82 dks vuqdzeh 1 es la''kksf/kr fd;k x;k Fkk ftlds vuqlkj bl izdkj dh ikoj dzs''kj dh & category {kerk tks & slabsystem ij vk/kkfjr gS tSls 2]5]305 ls0eh0 vf/kd ijUrq 28 xq.kk 35-5 ls0eh0 rd & category esa la''kks/ku ds mijkar blls iwoZ okyh vuqlwph esa n''kkZ;h x;h HkfV;ksaa dh NwV lekIr dj nh x;h gS vkSj vuqekfur vkadu vf/kd {kerk Hkh ck nh x;h gS rFkk fjis= ikoj dzs''kjks dks Hkh MkbZ gsfyd ikoj dzs''kj ds cjkcj {kerk okyk [kkdk x;kgS vuqlwph ds uksfVl ch esa& for every extra Rohilkhand type beladd 1600 quintals to the quality shown in coloumn 4 above.

bl izdkj vki }kjk dh x;h ,d lsy [k.M ''kVh dh ''kcrk fudkys ij ik;k fd vuqlwph ,d esa n''kkZ;h x;h 11]500 dqUry xUUks ds jl dks idk dj cu ldrh gS vkSj vkids bdkbZ ij mDr lhtu esa vkB :ysl [k.M HkkfV;ksa dk iz;ksx fd;k gS vuqlwph ,d ds vuqlkj ;fn vuqekfur vkSlr ekud xUuk [kjhn ;kuh xUus dks 1600 dqUry izfr HkVh dh nj ls izfr :gsy [k.M HkkfV;ksa ij 11]2000 dq0 xUUkk izfr ekg NksM+k gS bl izdkj izfr ekg 11]5000 dqUVy + 11]200 dqUVy 22]700 dq0 xUuk [kjhn ij ,d :i;k izfr dq0 dh nj ls 22]700-00 :i;s xUuk dz; dj izfr ekg ns; gksrk gS A vkids lht 1988&89 esa fnukad 31-10-89 ds fnukad 30-4-89 rd viuh bdkbZ pykbZ gS A vr% bl izdkj 88&89 esa bdkbZ ij de ls de 1]36]955-67 dq0 xUUkk [kjhnk x;k gS ftl ij ,d izfr dqUVy gh dj gS 1]36]956-67 :i;k xUuk dz; dj ns; gskrk gS

vuqlwph ,d la''kksf/kr 24-3-82 ds vuqlkj ,d Ldsy ftl izdkj dks HkVh dh vf/kdre vkSlr vf/kd {kerk 1600 dqUVy dh fu/kkZfjr gS ijUrq mDr lhtu esa vkidh bdkbZ ij iznRr izfr HkVh dh vkSlr ns[kus ij irk yxrk gS fd izfr HkVh dh ,d idkus dh izfof"V dh {kerk ch gS A blls ,slk izrhr gksrk gS fd bdkbZ ij fdlh fo''ks"k izdkj dh HkVh dk iz;ksx fd;k x;k gS tks vuqlwph ,d la''kksf/kr 24-3-82 esa fiykbZ x;h HkVh esa fHkUu gS mijksDr ds lEcU/k esa vkidks bl dk;kZy; ds i=kad 361 fnukad 30-5-89 }kjk fLFkfr Li"V djrs gq, lquok;h dk volj iznku fd;k x;k Fkk ijUrq u rks vki mDr fuf''pr frfFk ij mifLFkr gq, vkSj u gh vkidk dksbZ izfrfuf/k gh mifLFkr vk;s A

bl izdkj mijksDr leLr rF;ksa ij fopkj djrs gq, vius foospd ls bl fu"d"kZ ij igqapk gS fd bdkbZ vkils mDr lhtu eas fdlh fo''ks"k izdkj dh HkfV;ksa dk iz;ksx djus fdlh fo''ks"k izfdz;k dk iz;ksx fd;k gS tks vuqlwph ,d la''kksf/kr 26-3-82 esa fn[kk;h x;h =qfV;ksa ls fHkUUk gS rFkk bdkbZ vki }kjk izsf"kr izi= 13 fodYi i= esa n''kkZ;h x;h :gsy [k.M izdkj dh HkkfV;ksa esa fHkUu gS fodYi esa ?kksf"kr HkfV;ksa o iz;qDr HkkfV;ksa esa fHkUurk ds dkj.k bdkbZ dk i= l= 1988&89 gsrq fodYi i= xzkg; ugh gS A

vr% vki }kjk izsf"kr ekfld :Ik i=ksa esa bdkbZ ij n''kkZ;h x;h xUuk [kjhn 2]67]231-94 dqUVy gS vr% eS xUuk [kjhn dh bl ek=k dks Lohdkj djrk gwWa rFkk mRrj izns''k xUuk dz; dj fu;ekoyh 1961 dh /kkjk 15 �2� ds vUrZxr ,d :i;s izfr dqUVy dh nj ls vadu 2]67]231-94 :i;k xUuk dz; dj fu/kkZfjr djrk gS ftlesa vki }kjk 69]383-34 :i;k vnk fd;k tk pqdk gS A ''ks"k /kujkf''k eqrqfyd 1]97]848-60 :i;k ,d lIrkg ds Hkhrj jktdh; dks"kkxkj esa tek djds tek dk izek.k esjs dk;kZy; esa izsf"kr djsa A g0 vLi"V

3-6-89

The findings recorded by the Assessing Authority have been confirmed by the Appellate Authority vide judgment and order dated 11.5.2001. The relevant findings of the Appellate Court are as under:

mi;qZDr vihy ds laca/k esa vihydrkZ }kjk fn;s x;s fyf[kr rgjhjh c;ku rFkk lquok;h ds le; fn;s x;s c;ku orZeku [kk.Mlkjh fujh{kd ,oa dj fu/kkZj.k vf/kdkjh] fctukSj �"k"Ve� [kk.Mlkjh vf/kdkjh fctukSj }kjk fn;s x;s c;ku vihy ij izsf"kr izLrjokj vk[;k lEcfU/kr xUuk dz; dj i=koyh ,oa vU; vfHkys[kks ds ijh{k.k ,oa voyksdu mijkUr fuEufyf[kr rF; izdk''k esa vk;s A

l= 1988&89 esa vihydrkZ dh bdkbZ fodYi ds vUrZxr pyh rFkk fnukad 31-10-88 ls fnukad 30-4-89 rd xUuk dz; dj fodYi ds vUrZxr tek fd;k x;k A bdkbZ ds l= 88&89 esa fd;s x;s fujh{k.kks esa fodYi i= esa ?kksf"kr ykbZlsal d`r e''khujh ,d ikoj dsz''kj vkdkj 28 xq.kk 35-5 laseh- 9 gkbZM�sfyd lYQhVs''ku vkB :gsy[k.M HkfVV;ksa dks laLFkkfir ,ao iz;ksx tfur ik;k x;k A bl laca/k esa dksbZ fookn ugh gS A vfHkys[kks ls ;s izekf.kr gS fd mDr bdkbZ dks fnukad 14-11-88 ls 24-4-89 rd lgtu 1988&89 esa pyk;k x;k A rFkk mDr vof/k esa 267231-94 dq0 xUus dh fijkbZ dh x;h A rRdkyhu dj fu/kkZj.k vf/kdkjh }kjk l= 1988&89 esa bdkbZ cUn gksus ds ckn i=koyh ds voyksdu ij xUuk [kjhn ,oa fijkbZ dh ek=k dks n`f"Vxr j[krs gq, m0iz0 xUuk dz; dj vf/kfu;e 1961 vYikof/kd la''kksf/kr dh /kkjk 3 �1� �ch� ds vUrZxr xUuk dz; dj dh nj 112@& :0 izfr dq0 fu/kkZfjr gS A fdUrq vihydrkZ }kjk izsf"kr vfHkys[kks vuqlkj mDr lhtu esa 0-25 iS0 izfr dq0 dh nj ls xUUkk dz; dj dk Hkqxrku ekurs gq, rFkk bdkbZ ij iz;qDr HkfVV;ksa dh jl idkus dh izfr fnu dh {kerk cgqr vf/kd gksus ij fdlh fo''ks"k izdkj dh HkfVV;ks dk iz;ksx fd;k tkuk izrhr ekurs gq, tks fd vuqlwph ,d la''kksf/kr 26-3-82 eas fn[kk;h x;h HkVVh ls fHkUu gS A vihydrkZ dks uksfVl i=kad 361 fnukad 3-5-89 }kjk lgh xUuk dz; dj dk vadu djus gsrq lquok;h dk volj iznku fd;k x;k A ftldk ykHk u mBk;s tkus dh n''kk eas rRdkyhu dj fu/kkZj.k vf/kdkjh vius vkns''k i=kad 376-80 fnuakd 3-6-89 m0iz0 xUuk dz; dj fu;ekoyh 1961 ds fu;e 15 �2� ds vUrZxr lgh xUuk dz; djds lwpuk ftldk foLr`r fooj.k vkns''k esa vafdr gS A vius foosd ls vihydrkZ }kjk mDr lhtu esa fdlh fo''ks"k izdkj dh HkfVV;ks dk iz;ksx djds fdlh fo''ks"k izfdz;k dk iz;ksx fd;k tks vuq0 lwph0 ,d 26-3-82 esa fn[kk;h x;h HkfVV;ksa ls fHkUu gS A rFkk izsf"kr izi= 13 �fodYi i=� esa n''kkZ;h x;h HkfVV;ksa ls fHkUu gS A fodYi i= esa ?kksf"kr :gsy[k.M o iz;qDr HkfVV;ksa eas fHkUurk ds dkj.k l= 1988&89 gsrq fodYi i= xzkg; ugh gS ekurs gq, vihydrkZ }kjk n''kkZ;h x;h xUuk [kjhn dh ek=k 267231-94 :0 xUuk dz; dj fu/kZkfjr fd;k x;k A ftlesa vihy drkZ }kjk xUuk dz; dj dh en esa tek 69383-34 :0 ds vfrfjDr ''ks"k /kujkf''k vadu 197848-60 :0 xUuk dz; dj tek djus ds funsZ''k fn;s A

vihydrkZ dk ;g dFku Lohdkj ugh gS fd fcuk fdlh lquok;h dk volj iznku fd;s dj fu/kkZfjr fd;k x;k gS A vihydrkZ }kjk bl laca/k esa dksbZ vkifRr ugh mBkbZ x;h gS muds }kjk bdkbZ ij l= 1988&89 esa 26723194 dq0 xUus dh [kjhn ,oa fijkbZ dks muds }kjk Loa; Lohdkj fd;k x;k gS A vihydrkZ }kjk izLrqr o"kZ 1986 esa bdkbZ esa laLFkkfir :gsy[k.M HkfVV;ks dk QksVksxzkQ jfuax ,oa cUn dUMh''ku ds orZeku eas bdkbZ laLFkkfir u gksus rFkk l= 1988&89 ls iwoZ ds gksus dh n''kk esa iqf"V u gksus ds dkj.k egRoghu gS A vihydrkZ }kjk izLrqr vkj-,l- bUMLV�ht ,.M VsM�lZ dk fnukad jfgr izek.k i= dsu dzs''kj lkbZt 28 xq.kk 35-5 lseh0 9 jksyj gkbZM�ksfyd dh fijkbZ {kerk izfrfnu 1800 dq0 ls 2000 rd gS A rFkk egkizca/kd ftyk fctukSj izek.k i= fnukad 23-4-2001 ftlesa ,d ikoj dzs''kj vkdkj 28 xq.kk 35-5 lseh- 9 jksyj gkbZM�ksfyd dh fijkbZ {kerk 1800 dq0 ls 2000 dq0 izfrfnu rd gS A ,d :gsy[k.M+ HkVVh dh {kerk 225 dq0 ls 250 dq0 xUus ds jl idkus dh gksrh gS A 8 :gsy[k.M HkfVV;ks dh {kerk 1800 dq0 ls 2000 dq0 rd jl idkus dh gksrh gS A m0iz0 xUuk dz; dj fu;ekoyh 1961 la''kksf/kr 26-3-82 esa of.kZr vuqlwph ,d esa mDr dzs''kj dh fijkbZ {kerk ,oa :gsy[k.M HkVVh ds jl idkus dh {kerk dks n`f"Vxr j[krs gq, Lohdkj fd;s tkus ;ksX; ugh gS A

mi;qZDr ifjfLFkfr;ksa esa rRdkyhu dj fu/kkZj.k vf/kdkjh }kjk fd;s x;s dj fu/kkZj.k vkns''k eas fdlh ifjorZu dh vko;''drk ugh gS vihydrkZ dh mi;qZDr vihy cyghu gksus ds dkj.k ,rn}kjk vLohdkj dh tkrh gS A

From the aforesaid findings it appears that the petitioner has used some advance technology in the machinery by which the production has increased though the outer size of the machinery remained unchanged and he benefited from it by evading tax in this manner by submitting option form on basis of standard machinery. On a specific question being asked by the Court, the petitioner has failed to explain as to how the production has oeen doubled from the machinery manufactured according to specified standard which is said to have been used by. The same also remained unexplained to the authorities below also.

Admittedly, every machinery is manufactured according to specification. All its parts are standardized. There may be a little or negligible variation in the output but it can never be to an extent of almost twice the standard production specified for such a machinery unless and until some technical charge is made inside .the machinery. It appears that the authority has rightly come to the conclusion that some technical changes were made inside the machinery without affecting its outer specification. The authorities could only check the outer specifications of the machinery and not the inside parts of the crusher and the Bhatthi which worked continuously throughout and till the end of the season on 20.4.2009, hence there is no force in the argument of the petitioner that on inspection the specified machineries were found to be installed.

The contention of learned Counsel for the petitioner is that re-assessment has been made without notice to him is factually incorrect as appears from the record that notice was sent to him. He has raised this point in appeal and the Appellate authority has heard him on this point also which has confirmed the findings of the Assessing authority. A categorical finding has also been recorded by the Appellate Authority that the petitioner had been given an opportunity of hearing before assessing the amount under Rule 15(2) of the Rules.

Both the authorities have come to the conclusion that it was pt possible for the petitioner to have doubled the production from the standardized machinery which is manufactured according to the specification under the licence. There may be a little variation in the output but the variation could never be of about twice and the standard output can be produced by a machinery until and unless some technical variation is made.

To my mind, the technological variation or advancement made by the petitioner inside the machinery was not informed, hence option filed by the petitioner can not be said to be filed with clean hands. It is settled law that fraud vitiates all actions as such the authorities have rightly disregarded the option form. The returns were also not submitted by the petitioner timely which hampered the conclusion of the Assessing authority. The purchase tax deposited by the petitioner was therefore, under the option exercise was not found and liable to be re-assessed. No action was required by the authority for cancellation or for nonrenewal of the licence as the tax paid by the unit goes towards fund which is used for the development of the country and if there is any discrepancy, the same can be reassessed as has been done.

In the circumstances, it is stated above that the principle of estopple will not come into play. May be that the authorities did not find any technical variation in outer casing of the machinery as they could never have been able to inspect the machinery from inside as crushing of sugarcane season once started it continues uptill the end of the season and technical inspection of the inner parts of the machinery is possible which they are moving. After the crushing season the crusher is dismantled and repair work is done. Hence the authorities could never inspect any technical variation in the crusher or in the Rohelkhand Bhatthi which were used by the petitioner. It was found from the own record of the petitioners by the Assessing authority that the petitioner had purchased sugarcane more than it could have crushed and that its production was doubled. This could not have been done without any technical advancement/variation in the standardized machinery said to have been used by the petitioner.

For all the reasons stated above I am of the opinion that purchase of tax has rightly been re-assessed by the authorities below. However, it is provided that if any amount towards purchase tax has already been deposited by the petitioner before the Assessing Officer in view of the interim order of this Court the same shall be adjusted in the amount due assessed against the petitioner along with interest now.

The writ petition is, accordingly dismissed. No order as to costs.