JUDGMENT Prakash Krishna, J.
1. This revision is directed against the order dated February 19, 2003 passed by the Trade Tax Tribunal, Lucknow, in Appeal No. 133 of 2002. The short controversy involved in the present revision is as to whether the Tribunal was justified in confirming the order passed by the Divisional Level Committee, rejecting the application under section 4-A and refusing to consider subsequent notification dated December 16, 2002.
2. The applicant is a public limited company having its factory at Ghaziabad. The applicant applied for grant of eligibility certificate under section 4-A of the Act on account of expansion and diversification of the unit undertaken by it. The facts are not in dispute. The date of first production of the unit under diversification is July 31, 2001. The unit applied for grant of eligibility certificate in pursuance of the notification dated December 22, 2001. Under the said notification it is provided that in respect of any goods manufactured in the unit, which has undertaken diversification and the date of production of the goods are different from those manufactured earlier, such unit falls on or before March 31, 2000, the unit will be entitled for eligibility certificate. The application under section 4-A of the Act was rejected by the Committee vide order dated August 1, 2002 on the short ground that indisputably the date of first production is July 31, 2001, i.e., subsequent to March 31, 2000. The Divisional Level Committee held that the notification dated December 22, 2001 will not be attracted and rightly so in view of clause (c) of the said notification. Aggrieved against the aforesaid order the applicant approached Trade Tax Tribunal and the Tribunal by order under revision rejected the appeal filed by the applicant.
3. During the pendency of appeal before the Tribunal an intervening fact has taken place. The State Government in the meantime issued another Notification dated December 16, 2002. By this notification the earlier notification dated December 22, 2001 was amended and in place of date March 31, 2000 it was substituted by figure "December 31, 2001". The necessary corollary of this amend ment is that the Units which have undertaken expansion or diver sification the date of production falling on or before December 31, 2001 were covered by Notification dated December 22, 2001.
4. The above amendment in the notification was brought to the notice of Tribunal. The Tribunal refused to consider the said amend ment in the notification on the short ground that the said amend ment has come into force during the pendency of appeal before the Tribunal. The Tribunal was of the view that the amending notification dated December 16, 2002 was not there when Divisional Level Committee considered and rejected the application for grant of eligibility certificate. The Tribunal took a view that the subsequent notification which was not in existence at the time of passing of the impugned order and at the time of filing of appeal, could not provide a valid ground to set aside the order of the Divisional Level Committee.
5. Challenging the order of the Tribunal this revision has been filed.
6. I have heard Sri Bharat Ji Agrawal, Senior Advocate, assisted by Sri Piyush Agarwal, learned counsel for the applicant and Sri Bipin Kumar Pandey, learned Standing Counsel for the department.
7. Section 10 of the said Act deals with the appellate power of the Tribunal. Under sub-section (2) of section 10 of the Act any person aggrieved by an order passed under section 4-A, may file an appeal. Under section 10(c) of the said Act, such appeal shall be filed before the President and shall be heard and disposed of by the Bench of three Members. The appeal before the Tribunal shall lie both on question of facts as well as on question of law. There is no provision under section 10 of the Act restricting appellate power of the Tribunal. Two things are required to constitute appellate jurisdiction. The existence of relation of superior and inferior Court and the power on the part of former superior court to review the decisions of inferior court. In the well-known work of Story of Constitution (United State), Volume (2) Article 176 it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceeding in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in variety of forms, in any form, in which the Legislature so chose to prescribe (see AIR 1970 SC 1 Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat). In this case Supreme Court has held that revisional jurisdiction is part of appellate jurisdiction. Since the appeal to the Tribunal under section 10 of the said Act lies both on question of facts as well as question of law the power of the Tribunal is co-extensive with that power of the Divisional Level Committee. Meaning thereby the Tribunal can take into account all such facts and change in law as could have been noticed by the Divisional Level Committee. In the famous case reported in AIR 1941 FC 5 (Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri) it has been held that hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore, in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. The said judgment has consistently been followed by the Supreme Court. In AIR 1959 SC 577 (Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva), it was held that it is well-settled that an appellate court is entitled to take into consideration any change in law.
8. Following the above case of Lachmeshwar Prasad Shukul AIR 1941 FC 5, in AIR 1974 SC 2068 (Amarjit Kaur v. Pritam Singh), it has been held as under :
"In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri 1940 FCR 84 ; AIR 1941 FC 5 it was held that once the decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court has seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the courts below retained jurisdiction. The Court further said that it has been a principle of legislation in British India at least from 1861 that a Court of appeal shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction, that even before the enactment of that Code, the position was explained by Bhashyam Iyengar, J., in Kristnama Chariar v. Mangammal ILR (1902) 26 Mad. 91 at pp. 95, 96 (FB) in language which makes it clear that the hearing of an appeal is under the processual law of this country in the nature of a re-hearing, and that it is on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognised that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against."
9. The aforesaid view has been reiterated by Supreme Court in AIR 1981 SC 1113 (M.M. Quasim v. Manohar Lal Sharma), AIR 1334 (Dosabai v. Mathuradas Govind Das).
10. In (2002) 1 JT 254 SC (Om Prakash Gupta v. Ranbir B. Goyal), it has been held that no doubt Courts "can" and "sometimes" must take notice of subsequent events but that is done merely 'inter- parties" to shorten litigation but not to give a defendant an advantage because a third party has acquired the right and title of the plaintiff.
11. From the above facts it is established that while exercising appellate jurisdiction the appellate court can take into consideration subsequent change in law to shorten the litigation.
12. In the present case indisputably the applicant can apply for grant of eligibility certificate under section 4-A of the Act within a period of six months from the date of amended notification. If such an application could have been filed, the department cannot raise any objection about the entertainment of the said application.
13. In that view of the matter I am of the opinion that the Tribunal has erred in law in holding that it cannot take into consideration the amended notification. The Tribunal was exercising appellate jurisdiction under section 10 of the Act and had power to take into account the subsequence changes in law.
14. In [1961] 41 ITR 280 (Commissioner of Income-tax v. Deewan Bahadur Ramgopal Mills Ltd.), Supreme Court has held that change in law validly made and applicable to a case pending in the appeal must be considered and given effect by the appellate court. In [1966] 60 ITR 165 (SO (Commissioner of Income-tax v. Dharampur Leather Co. Ltd.), it has been held that when question has been referred to the High Court and in the meantime the law has been amended with retrospective operation it would be the duty of High Court to apply the law so amended, if it applies. But taking notice of the law which has been substituted in the original provision the High Court is giving effect to legislative intents and does no more what must be deemed to be necessarily implicit in the question referred by the Tribunal. In [19991 115 STC 572 (All.) ; 1999 UPTC 7 (Chandel Rice Mills Private Limited v. State of U.P.), it was held that subsequent developments during the pendency of writ petition can be taken into consideration for granting relief. This was the case under section 4-A of the Act. This Court has placed reliance on the earlier judgment of this Court reported in (1993) (II) LCD 867 (Mahabir Prasad v. Sixth Additional District Judge, Gonda), the Court held that changed circumstances and subsequent developments entitled the petitioner for the relief.
15. The notification being beneficial to the assessee the same should have been taken into account, by the Tribunal as the said notification had come into existence during the pendency of appeal before it. Supreme Court in [1999] 114 STC 365 ; 1999 UPTC 250 (Commissioner of Sales Tax v. Industrial Coal Enterprises), has observed that provisions of section 4-A should be liberally construed. The construction should be reasonable and pervasive so as to advance objective of the provision. Taking into consideration the facts and circumstances, I am of the view that at the most application of the petitioner when filed can be termed as premature, but has become maintainable in the light of amended notifications and the benefits cannot be denied to it.
16. For the reasons given above both the orders passed by the Divisional Level Committee dated August 1, 2002 and the order of the Trade Tax Tribunal dated February 19, 2001, are set aside. The matter is remanded back to the Divisional Level Committee to consider and decide the application of the applicant afresh in the light of observations made above and to issue necessary eligibility certificate, if not otherwise dis-entitled in accordance with law.
17. The revision is allowed.