JUDGMENT S.L. Saraf, J.
1. Heard learned counsel for the petitioner and the learned standing counsel for the respondents.
2. This writ petition arises out of an order dated 29th December, 1981 passed by the respondent No. 1 (Annexure 5 to the writ petition) under the U. P. Sugarcane Purchase Tax Act, 1961. The petitioner is the owner of cane crusher unit comprising of two power crushers each of the size 13" x 18" six roller hydraulic non-sulphitation. The petitioner was granted a licence in respect of the aforesaid unit for the assessment year 1980-81. The petitioner exercises option within the meaning of the provisions of Sub-section (1) of Section 3 of the Act read with Rule 13-A of the U. P. Sugarcane Purchase Tax Rules by having filed the declaration in Form XIII. In the said declaration form the petitioner gave full details and particulars of the power crushers. In paragraph 7 of the writ petition the petitioner has stated that in accordance with the provisions of Rule 13-A the petitioner sent the desired declaration specifically mentioning therein that out of two power crushers they will operate only one power crusher. The other power crusher could not be operated because it was damaged and not in working order and there were no sufficient means to put the same in working order and also there were no adequate power supply of Sugarcane. The unit of the petitioner was inspected by the respondent No. 2 from time to time and he always found one power crusher working and always found the other power crusher not in working condition. The inspection memo was prepared on the spot and a copy thereof was given to the petitioner. According to the petitioner that since the petitioner had operated only one power crusher, he was required to pay tax for only one power crusher on the assumed basis.
3. In paragraph 7 of the counter-affidavit the respondents have admitted that the licensee had of course made a mention in the option form that he would operate only one power crusher but submits that it would not make any difference so far as the assessment of the tax under the Act is concerned as the tax is imposed unit-wise in case of licensee offering option under Section 3(1-b) of the Act and on the aforesaid basis the respondents made the assessment on the petitioner in respect of both the power crushers. The petitioner submits that the aforesaid order is bad in law, illegal and without jurisdiction. The respondents have acted illegally in assessing the petitioners in respect of both the power crushers. The petitioner prays that the order dated 29th December, 1981 be set aside and the petitioner be made liable for payment only in respect of one power crusher. The question as to whether the petitioner be assessed on the basis of one crusher only.
4. The above question has been discussed by this Court in a Division Bench judgment in Smt. Kusum Lata Jain, Bijnore v. Khandsari Inspector Tax Assessment Officer, Bijnore, 1986 UPTC 575 as follows :
"The above formulated question is not res-integra, inasmuch as, that has already been decided by this Court in the case of Krishna Sugar Factory, Moradabad v. State of U.P., 1981 UPTC 443 : (1981 All LJ 93). In that case the assessment year was 1972-73 and the owner of the unit exercised option under the proviso to Sub-section (1) of Section 3 read with Rule 13-A in Form XIII stating the details of the two crushers which the unit comprised. But before starting the unit on 23-11-1972 an intimation was sent on 6-11-1972 that the petitioner would operate only one crusher and that the other crusher be sealed. The request of the petitioner was rejected as it is done in the instant case. When the matter came up to this Court at the instance of the petitioner, the argument of the respondent was that the option having been given by the petitioner was irrevocable for the whole year and the petitioner could not be permitted to change the option from two crushers to one. Thereupon, a Division Bench of this Court observed :
"The irrevocability contemplated, therefore, does not apply to declaration relating to number of crusher or bels which shall comprise the unit. It is liable to change and alteration..........It has been seen above that irrevocability provided for in Sub-section (1-b) applied to option only and not to declaration about the number of crushers."
Then it was held that the owner of the unit was liable to be assessed only in respect of one crusher. This decision is squarely applicable to the facts of the instant case, as the petitioner before starting the unit sent intimation, on 18-12-1985 (Annexure 1 to the writ petition) that the unit could work only with one crusher. Following the decision of M/s. Krishna Sugar Factory (1981 All LJ 93) (supra) we hold that the order dated 30-12-1985 passed by the respondent No. 2 (Annexure 3 to the writ petition) deserves to be quashed."
5. Following the aforesaid decision and the decision referred to in the said judgment of M/s. Krishna Sugar Factory, 1981 UPTC 443 :(1981 All LJ 93) we hold that what has become irrevocable is the option and not the declaration relating to the number of crusher as such the petitioner will, therefore, be assessed only in respect of one power crusher for the assessment year 1980-81.
6. In the result the petition succeeds and is allowed. The order dated 29th December, 1981 is hereby quashed and set aside. There will be no orders as to costs.