JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as 'Act') is directed against the order of Tribunal dated 19.02.1999 under the U. P. Trade Tax Act.
2. The brief facts of the case are that the applicant is a Private Limited Company incorporated under the Indian Companies Act, 1956 having its registered office at Kanpur. Applicant established a new Unit on Plot Nos. C-28 and C-29. Industrial Area. Orai in the District Jalaun for manufacturing of firebricks and B. P. Sets The production was started on 15.9.1992 and the first sale was made on 24.10.1992 Being a new Unit for the claim of exemption on the turnover of manufactured products, applicant moved an application in Form 46 on 12.3.1993 within six months from the date of first sale Under the Notification applicant was entitled for exemption from the date of first sale Application was filed in eight copies as required under Rule 25 (1) (a) in Form 46. It appears that alongwith the application, copy of lease-deed executed by U. P. S. I. D. C. could not be furnished, therefore, one copy of application was returned to the applicant.
3. It appears that on preliminary examination of the application by the Industrial Department, it was found that the column no 10 of the application. which was relating to the lease-deed of the land of the Unit was not filled and the copy of the lease-deed was not enclosed alongwith the application Form, thus, the General Manager. District Industrial Centre. Orai vide his letter dated 12.3.2001 informed the Company to fulfill the Column and to provide lease-deed which was not enclosed with the application Fonn. One copy of the application was also returned on 04.6.1993 to remove the objection stated above. Admittedly, applicant filed copy of lease-deed on 16.04.1994 executed by U. P. S. I. D. C. dated 18.9.1991/28.10.1991 alongwith one copy of application Form. The Divisional Level Committee examined the application of the applicant, and treated the Unit of the applicant as a new Unit and issued Eligibility Certificate No. 1992-2000 dated 21.8.1995 granting exemption from 16 4.1994 to 23.10.2002 instead of 24.10.1992 to 23.10.2002. Exemption from 16.4.1994 was granted because the applicant filed lease-deed on 16.4 1994 the date which had been considered as the date of application as per the provisions of Rule 25 (1) (a). The applicant filed a review application before the Divisional Level Committee on 29.12.1995. The Divisional Level Committee vide order dated 26.7.1996 rejected the review application on the ground of non compliance of the objection within 60 days and also on the ground that the review application was not tiled within 30 days from the date of order dated 21.8.1995. Against the Eligibility Certificate dated 21.8,1995 and also against the order passed on the review application, applicant filed two appeals before the Tribunal. The Appeal No. 93 of 1996 filed against the Eligibility Certificate has been rejected on merit and other Appeal No. 81 of 1997 filed against the order passed on the review application has been dismissed as infructuous.
4. The Tribunal held that since the applicant did not fulfill the conditions within 60 days from the receipt of the intimation and could not furnish the information on 16.4.1994 by filing lease-deed as per the provisions of Rule 25 (c) the date on which, application was completed or information or additional information was furnished, be treated as the date of the application and accordingly exemption had been allowed from the said date in view of Section 4-A (5) (b) of the Act.
5. Heard learned Counsel for the parties.
6. Learned Counsel for the applicant submitted that under Section 4-A and as per the Notification dated 27.7.1991, the only condition for being a new Unit is that the land should be allotted by U. P. S. I. D. C. and alongwith application. allotment letter was filed, thus, the requirement of Notification was fulfilled. He submitted that vide letter dated 06.7.1992, the Government has clarified that in the case of allotment of land by any Corporation which is under the control of the State Government, conditions of the lease-deed could not be applicable, this clarification was given on the query being made, whether in the case of allotment of land by the Corporation the condition of the registration of the lease-deed is required. Thus, merely because, lease-deed could not be furnished within the statutory period, the period of exemption cannot be curtailed. He submitted that the Circular is binding as held by the Apex Court in the case of Polycan Industries v. Commissioner of Trade Tax, U.P. Lucknow reported in (2005) 11 SCC page 448, He further submitted that since the application was moved within six months, the provisions of Section 4-A (5) (a) will apply and not Section 4-A (5) (b) and the exemption to be allowed for the entire period and could not be curtailed. He relied upon the observations made in the case of Tarun Alum Pvt. Ltd. v. Commissioner of Trade Tax reported in 2003 NTN (22) page 393.
7. Learned Standing Counsel submitted that the applicant Unit had been treated as a new Unit, therefore, there is no dispute of its entitlement to get exemption under Section 4-A of the Act. He submitted that the dispute is only from which date, exemption should the allowed. He submitted that Section 4-A f (5) (a) applies to a case where the application is complete in all respect and no information is required and if any information is required by the Divisional Level Committee under Rule 25, and same is to be fulfilled within 60 days. He submitted that if the application is incomplete, and opportunity is given to complete the application or any information is sought under Rule 25 and the same is not fulfilled within 60 days, then Section 4-A(5) (b) of the Act will apply and the Unit would be entitled for exemption from the date of application. He submitted that the date of application under Rule 25 (2) means, the. date on which, the application is completed or information is furnished, He submitted that in the present case, admittedly, lease-deed was not filed alongwith the application, thus, the application was incomplete. In any view of the matter, applicant was required to fill the Column No. 10 of the application Form and to file copy of lease-deed. Since the application was not completed and the information was not furnished within 60 days, and was furnished on 16.4.1994, thus as per Rule 25 (c), 16.4.1994 was the date of application and exemption was eligible only from the said date under Section 4-A (5) (b) of the Act.
8. Having heard learned Counsel for the parties and have perused the revision petition. Counter and Rejoinder-affidavits.
9. Section 4-A (5) and Rule 25 (1) (a)(b)(c) reads as follows:
Section 4-A -(Exemption from trade tax in certain cases :-
(5) A manufacturer shall be entitled to the facility of exemption from, or reduction in the rate of tax, notified under Sub-section (1)-
(a) If he applies for such facility within six months from the relevant date of commencement of the period of facility referred to in that sub section or by (September 30, 1992), whichever, expires later, for the entire period notified under that sub section;
(b) If he applies for such facility later than the date specified in Clause (a) only for part of the period notified under Sub-section (1), which shall be computed from the date of the application till the end of the period of facility;
(c) In relation to a new unit referred to in Explanation (1), where the conditions specified in Clause (a) of the said Explanation (1) are fulfilled on a date later than the date of commencement of the period of facility notified under Sub-section (1), then subject to the provisions of Clause (b), only for part of the period notified under Sub-section (1), which shall be computed from the date on which all the conditions referred to in the said Clauses (a) to (d), have been fulfilled or July, 20, 1992 whichever is later, till the end of the period of such facility, so however, that a manufacturer who was eligible for such facility under Clause (c) as it stood prior to July 20, 1992 and had applied for the facility prior to the said date shall be entitled to the facility in accordance with the said Clause (c).
Rule 25- Grant of eligibility certificate-(1) (a) The Application for grant of eligibility certificate by a new unit or a unit which has undertaken expansion, diversification or modernization shall be submitted in Form No. ST-XLVI ( in six copies in case of units with a fixed capital investment up to rupees 5 lakhs and in eight copies in case of units with a fixed capital investment exceeding rupees five lakhs), to the General Manager, District Industries Centre of the district in which the unit is situated and in the case of unit situated in any Industrial Development Authority Area to the Area Development Officer (Industry) of the said Authority.
(b) The General Manager, District Industries Centre or the Area Development Officer (Industry) of the concerned Industrial Development Authority may require the unit to furnish any additional information within 60 days of the receipt of an intimation in this regard.
(c) If the application is incomplete or does not contain the required information the unit may be asked to complete the application or furnish the required information within 60 days of the receipt of an information in this regard. If the unit fails to complete the application or furnish the required information or the additional information mentioned in Clause (b) within the prescribed time, the date on which the application is completed or the information or the additional information is furnished shall be treated as the date of application of such unit.
(2)-----------
(3)(c) ---------
10. A 'new Unit', established after 31.3.1990 is defined by explanation (2). It says that a new Unit means a factory or workshop set up by a dealer after such date and satisfying the conditions laid down under this Act or Rules or Notifications made thereunder with regard to such factory or workshop. Clause (2) of the Notification No. ST-II-1093/XI-7(42)-86-U.P. Act-XV/48-Order-91, dated 27.7.1991 provides conditions. One of the condition referred in sub Clause (2) is that new Unit is established on the land or building or both owned or taken on lease for a period of not less than fifteen years by such unit or allotted to such unit by the State or the Central Government or any Government Company or any Corporation owned or controlled by the Central or the State Government.
11. The case of the applicant is that in the present case, the land was allotted by U. P. S. I. D. C. a Corporation owned by the State Government, thus there was no requirement of taking the land on lease for a period of fifteen years and in case if, the lease deed was not filed alongwith the application, it cannot be said that the application was incomplete, inasmuch as, alongwith the application, allotment order was filed.
12. It is true, that if the land is allotted by the Corporation owned by the State Government, the condition mentioned in Notification No. ST-II-1093/XI-7(42)-86-U.P. Act-XV/48-Order-91, dated 27.7.1991 is fulfilled, but admittedly after the allotment, lease-deed was executed between the applicant and U. P. S. I. D. C. and the lease-deed was in existence. The Column 10 of form 49. which is an exemption application provides to furnish the detail of the lease-deed and also provides to annex the copy of the lease-deed. Since the Column 10 relating to the lease-deed was not filled and the copy of the lease-deed was not filed, the Divisional Level Committee returned one copy of the application and required to fill the Column 10 of the application and to fulfill the lease-deed, The lease-deed as stated, was executed on 28 10.1991 itself. There was no reason in not filling the Column 10 of the application and to file the copy of the lease-deed dated 28.10.1991, immediately on the receipt of the letter and at least within 60 days from the receipt of the said letter. Why the application after filling the Column 10 including copy of the lease-deed was not resubmitted within 60 days from the receipt of the letter is best known to the applicant. The applicant Unit has been recognized as a new unit and exemption has been granted, thus, there is no dispute that the condition of Section 4-A of the Act and of Notification has been fulfilled. The only question for consideration is that from which date, exemption should be allowed. The validity of Rule 25 is not under consideration, thus, rule as it exists has to be considered. Rule 25 (c) clearly provides that in case, if the applicant could not fulfilled the conditions or could not furnish the information within 60 days from the date of receipt of the intimation, the date on which, the application is complete or information is furnished is to be considered as the date of the application and in accordance to Section 4-A (5) (b), exemption is to be allowed from such date. There is no dispute that Form was fulfilled and lease-deed was filed on 16.4.1994 after expiry of 60 days. Argument of learned Counsel for the applicant is that the provisions of Section 4-A (5) (a) is applicable and not Section 4-A (5) (b) has no substance. Section 4-A (5) (a) presupposes a complete application in all respect where no information was required and if required, the same is fulfilled within 60 days. It does not include a case where the application is considered incomplete for any reason by the Divisional Level Committee and the unit is required to complete the application and to furnish necessary required information, The decision in the case of Tarun Alum Pvt. Ltd. v. Commissioner of Trade Tax (supra) is based on the different facts. This issue, though raised, has not been adjudicated as is being adjudicated in the present case. Thus, the decision is not applicable.
13. For the reasons stated above. I do not find any ment in the revision.
14. In the result, revision is dismissed.