No cancellation without proving misuse of eligibility certificate :SC

By | May 8, 2016

SUPREME COURT OF INDIA

Commissioner of Trade Tax, U.P.

v.

Chetna Chemicals (P.) Ltd.

A.K. SIKRI AND ROHINTON FALI NARIMAN, JJ.

CIVIL APPEAL NO. 5103 OF 2007

APRIL  1, 2016

D.K. Goswami, Adv., Ravi Prakash, Adv. and Ashutosh Sharma, Adv. for the Appellant. Kavin Gulati, Sr. Adv., Avi Tandon, Adv., Rohit Sthalekar, Adv. and T. Mahipal, Adv. for the Respondent.

ORDER

1. It is not in dispute that an eligibility certificate dated 14.02.1984 for tax exemption was granted to the respondent under Section 4A of the U.P. Trade Tax Act (hereinafter referred to as ‘the Act’). Thereafter, a show cause notice was issued under Section 4A(3) of the Act alleging that the respondent had misutilised the said certificate. Section 4A(3) of the Act under which the action was taken reads as under:

“4A(3). Where the Commissioner of Sales Tax is of the opinion  that facility of exemption from, or reduction in the rate of tax obtained on the basis of eligibility certificate referred to in clause (d) of sub-section (2) has been misused in any manner whatsoever, he may, by order in writing cancel the Eligibility Certificate from such date, whether before or after the date of such order, as may be specified therein.”

2. It is clear from the above that power can be exercised by the Commissioner to cancel the eligibility certificate only when misuse of the certificate is found in any manner whatsoever. However, we find that in the show cause notice there was no allegation of misuse of eligibility certificate which was granted to the respondent. On the contrary, the case was sought to be made out that the eligibility certificate itself was granted wrongly, inasmuch as the Unit has installed a second hand Pouch Sealing Machine purchased from M/s. Gorakhpur Grah Udyog Kendra, Gorakhpur. In these circumstances, we are of the opinion that the High Court has rightly held that this fact was known to the appellant when the eligibility certificate was granted and there was no misrepresentation. In any case, as mentioned above, no case was set up by the appellant in the show cause notice that there was misuse of the eligibility certificate. Therefore, it could not have been cancelled in exercise of powers confirmed under Section 4A(3) of the Act.

3. In view of the aforesaid, this appeal is devoid of any merit and, accordingly, dismissed.

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