Subhash Chandra vs Deputy Sugar Commissioner Bareily & Anr.

R. K. Gulati, J.—The petitioner has sought a writ in the nature of ceniorari seeking quashing of the orders dated 61090, and 791990, copies of which have beenjiled as Annexures 5 and 3 to the writ petition. The petitioner has also prayed for amandamus directing the respondents not to assess him to purchase tax for the month of May, 1990 as his Unit did not work in that month and it was closed down.

In crushing season 198090, the petitioner owned a sugarcane crusher (hereinafter referred to as "the Unit") for the period 1101989 to 3091990. He opted for assessment on assumed basis under the provisions of U.P. Sugarcane (Purchase Tax) Act, 1961 and the rules framed thereunder. According to the petitioner, he had to suddenly closed down his Unit on 3041990 due to labour problem and no sugarcane was crushed mereafter as the Unit was finally closed on that date. It is also the case of the petitioner that he could not send the information about the closure of his Unit on 151990 because that day was a National Holiday and the postal department was also closed on that date. It is claimed that the intimation was however, sent under registered post on 251990 to the concerned authorities as prescribed under the Act and the Rules. On 361990, the Area Khandsari Inspector inspected the Unit of the petitioner and he sealed the Unit on that date for the petitioner was allegedly in arrears of purchase tax. On 751990, the Deputy Sugar Commissioner, Haldwani, Namital, also inspected the Unit of the petitioner and in his report it was inter alia stated that the Unitwas completely closed. Further, no sugarcane was available on the spot (sic) Accountant Laxmi Narain Awastni had informed that the Unit had functioned upto 3041990 and thereafter, it was closed which has been verified by the Khandsari Inspector on 35 90.

The assessing officer by his order dated 791990, however, assessed the petitioner to purchase tax for the entire month of May, 1990 on the footing that the petitioner give no information about the closure of his Unit which under the rules the petitioner was required to give at least one week before the close of the working of the Unit. The assessment order was upheld in appeal which was filed by the petitioner. Feeling still aggrieved, the petitioner filed this writ petition challenging the validity of the aforesaid orders.

Learned counsel for the petitioner and the learned standing counsel Sri K.N. Sahai for the respondents have been heard. The only question that falls for consideration is, whether the petitioner could legitimately be assessed to purchase tax for the entire month of May, 1990 having regard to the provisions contained under Rule 13A(1A) of the U.P. Sugar Cane (Purchase Tax) Rules, 1961 (for short "the Rules"). Subrule 1A of the Rule 13A inter alia provides that the owner of a Unit shall give an intimation in writing of the date on which he decides to close the working of the Unit. It shall be given under registered cover at least one week before such date, to the Sugar Commissioner, Assistant Commissioner and the assessing authority. SubRule (2) of the Rule 13A states that where the owner of a Unit exercises the option the quantity of sugarcane on the purchase of which he shall be liable to pay the tax shall be assumed on monthly basis according to the specification laid down to ScheduleI. The second proviso to that subrule states that in the last month of the working of the Unit in any assessment year, the quantity of sugarcane for the purpose of payment of tax shall be assumed upto the date which is intimated by the owner of a Unit under subrule (1A) or changed under the first or the second proviso to that subrule, as the case may be, and further that if the owner of a Unit is found to have closed his unit after the specified or changed date under subrule (1A) the quantity of sugarcane for payment of tax shall be assumed for the whole of such month. The impugned assessment for the whole month of May, 1990, has been made for the only reason that the petitioner did not sent the intimation in writing one week before he closed theworkingoftheUnit.

In M/s. Tek Ghana Purushottam Kumar Mahendra Pal Singh, Nirpendra Kumar Singh, Bijnor v. State of U.P. & Ors., 1995 (2) UPTC 811 what had happened was that on inspection the Khandsari Inspector found that the Unit was lying closed. There was no sugar cane, gur etc. He, therefore, sealed the Unit. The Unit was again inspected by the Khandsari Inspector on 10th and 14th February, 1992 and it was found closed. The assessment in that case was also made for the entire month of February, 1992 which was challenged before this Court. This Court held that as the Khandsari Inspector had sealed the Unit on 121992, making it impermissible for the Unit holder to run it and therefore it was not open to the authority loncerned to say that the petitioner should have given prior information of the closure. The assessment for the month of February, 1992, in that case, was therefore, not sustained.

In Abdul Rahman son of Haji Rahman Rahmat Ullah Bijnor v. Assistant Commissioner Bijnor & Anr., 1989 UPTC 409, somewhat a similar view has been taken as in the case of Tek Chand (supra).

It is not disputed by the Revenue that the Unit of the petitioner was closed and sealed by the Khandsari Inspector on 351990. This fact was restated by the Assistant Sugar Commissioner, Haldwani, Nainital, in his report dated 7590. on these admitted facts in view of the law laid down by this Court in the two decisions referred hereinabove, the impugned assessment order and the order'' passed in appeal, cannot be sustained in their entirety. There seems no justification to assess the petitioner to purchase tax for the entire month of May, 1990. The impugned assessment order which is dated 7990, and the appellate order dated 6101990 are set aside with the direction to the assessing officer, the second respondent to make a fresh assessment order in accordance with law and in the light of the observations made above.

In the result, the writ petition succeeds in part and is allowed accordingly. There shall be no order as to costs.