JUDGMENT P. K. Jain, J.
1. In the assessment year 1994-95, the petitioner was operating a sugar cane crusher under the name and style of M/s. Kakar Sugar Works. He had submitted Option in Form 13 in view of the proviso to Section 3 (1) of the U. P. Sugarcane (Purchase Tax) Act. 1961 (hereinafter called as the Act) read with Rule 13A of the U. P. Sugarcane (Purchase. Tax) Rules, 1961 (hereinafter called as the Rules). According to the option given by the petitioner, he was to operate his unit from 15.1.95. However, on 7th January, 1995, he claims to have informed the authorities concerned in accordance with the provisions contained in the second proviso to Rule 13A (1) of the Rules that for certain reasons, he will not be able to operate the unit w.e.f. 15th January, 1995. The date from which he will operate the unit will be intimated later on. In is further alleged that on 15.1.95, the petitioner informed the authorities concerned that he would operate his unit from 22.3.95. He deposited the tax on 21.3.95 and there was inspection dated 22.3.95 and ultimately the petitioner closed his unit after working up to 31st March, 1995. At the time of inspection dated 1.4.95, the unit was found to be not functioning. Another inspection was made on 9.4.95. The petitioner's case is that after expiry of about 3 years, he suddenly received a notice and after he furnished reply to the notice, assessment order was passed by cancelling the option exercised by the petitioner and by making best judgment assessment and tax liability of Rs. 17,550 was imposed by order dated 16.6.98. An appeal was filed by the petitioner before the appellate authority/ Assistant Sugar Commissioner. Shamli, district Muzaffamagar. which was dismissed without sufficient reasons.
2. The petitioner, therefore, filed the present writ petition praying to quash the impugned order dated 29.8.98 passed by the appellate authority and 16.6.98 passed by the assessing authority, i.e.. respondent Nos, 2 and 3 respectively. A further prayer has been made for issue of a writ in the nature of mandamus directing the respondents not to give effect to the impugned orders dated 29.8.98 and 16.6.98.
3. The respondents have filed counter-affidavit in which it is stated that on 7.1.95 information was given by the petitioner and no date was fixed from which the petitioner was to operate his unit and he had thus violated the provisions of Rule 13A of the Rules framed under the Act. It was admitted that in the assessment year in question, the petitioner operated his unit from 22.3.95 to 31.3.95 after depositing the purchase tax but this cannot be accepted since information dated 7.1.95 did not disclose the date on which the unit was to be operated which was clear violation of Rule 13A of the Rules. The option under Rule 13A of the Rules was accepted for the entire season. In view of the audit objection when he had given option to start the unit from 15.1.95, he was bound to pay purchase tax for the period from 15.1.95 to 31.3.95.
4. Sri J.P. Pandey, learned counsel for the petitioner and Sri B. K. Pandey. learned standing counsel for the respondents have been heard.
5. It is submitted that there is no denial of the fact that the information as provided by proviso to Rule 13A of the Rules was given by the petitioner to the respondents and during inspections also, it was found that the petitioner had started working of the unit from 22.3.95. It is submitted that in these circumstances, there was no sufficient ground for assessing the petitioner for realization of purchase tax for the period from 15.1.95 to 31.3.95. Learned standing counsel submits that since no indication was given in subsequent information dated 7.1.95 as to from which date the petitioner was operating his unit, the authorities were justified in presuming that the petitioner operated his unit from 15.1.95 to 31.3.95.
6. Proviso (2) to sub-rule (1) of Rule 13A of the Rules reads as follows :
"Provided further that where the owner decides to start the working of his unit from any date subsequent to the date specified under this sub-rule, he shall give an intimation to this effect, in writing and under registered cover to the Sugar Commissioner, the Assistant Sugar Commissioner and the Assessing Officer, at least one week before the date specified."
7. Rule (4) of Rule 13A of the Rules further provides that "the owner of a unit exercising option, shall at least one week before the closure of the unit for the assessment year, obtain from the Assessing Officer a certificate of clearance of the purchase tax in Form XIV and forward one copy each thereof to the collecting authority and the Secretary of the Cane Development Council concerned."
8. Proviso (1) to sub-rule (2) of Rule 13A of the Rules further provides that "in the first 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 from the date specified in declaration made under sub-rule (1) or changed under the first or the second proviso to that sub-rule, as the case may be."
9. Proviso (2) to sub-rule (2) of Rule 13A of the Rules further provides 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 up to the date which is intimated by the owner of a unit under sub-rule (1A), or changed under the first or the second proviso to that sub-rule, 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 sub-rule (1A), the quantity of sugarcane for the purpose of payment of tax shall be assumed for the whole of such month."
10. Proviso [3J to sub-rule (2) of Rule 13A of the Rules further provides that "where the owner of a unit is found to have started the working of the unit before the date specified or changed under sub-rule (1) the quantity of sugarcane for the purpose of payment of tax shall be assumed for the whole of such month."
11. Combined reading of these provisions clearly indicates that there is no room for presumption for the authorities that the dealer had started operating his unit from a date other than the date disclosed in the option. in the instant case, there is no case of the respondents that on any date prior to 22.3.95. a survey was made and the petitioner was found operating his unit earlier than the date stated in the modified option under proviso (2) to sub-rule (1) of Rule 13A of the Rules. It is also not case of the department or the respondents that modification in the date of operation subsequent to the date given in the original option was not intimated well within time or in accordance with rules. Therefore, the assessing authority or the appellate authority had no reasons to presume that the petitioner had operated his unit from 15.1.95 even though under proviso (2) to sub-rule (11 of Rule 13A of the Rules, he had given intimation to the authorities concerned well within time. In view of the provisions contained in sub-rule (2) of Rule 13A of the Rules, the assessing authority could not have assumed that the petitioner had operated his unit w.e.f. 15.1.95. There is nothing in the Rules or in the Act and nothing has been pointed out to the Court by the learned standing counsel showing that in case while postponing the date of operation of the unit as given in the original option, the dealer had not intimated the subsequent date from which the unit was to be operated, he would be liable for payment of tax from the date of original option given by him. Therefore, in considered view of the Court, the authorities below, i.e., respondent Nos. 2 and 3 have wrongly passed the impugned orders dated 16.6.98 and 29.8.98. The petitioner having fully complied with the provisions of Rule 13A of the Rules, the petitioner was liable to pay purchase tax only for the period from 22.3.95 to 31.3.95.
12. In view of the foregoing discussions the petition is allowed. The orders passed by the respondent Nos. 2 and 3 contained in Annexures-12 and 13 to the writ petition are hereby quashed.