JUDGMENT M. Katju, J.
1. This writ petition has been filed for a writ of certiorari to quash the impugned order dated May 10, 1994 (annexure 9 to the petition), and for modification of the order dated September 7, 1992 (annexure 3 to the petition) in so far as it relates to the curtailment of the exemption under Section 4-A of U.P. Trade Tax Act, 1948 granted for five years (from March 30, 1990 to March 29, 1995). The petitioner has also prayed for a mandamus directing the respondent No. 2, the Divisional Level Committee, Kanpur, to grant exemption under Section 4-A for five years with effect from the date of the first sale, i.e., (March 30, 1990) and restraining the respondents from realising trade tax from the petitioner for the assessment years 1991-92 to 1994-95.
2. Heard learned Counsel for the parties.
The petitioner established a new industrial unit for the manufacture of hosiery, vests, underwear and socks. Since it fulfilled all the conditions required for grant of exemption under Section 4-A of the U.P. Trade Tax Act in accordance with the notification dated December 26, 1985, hence, an eligibility certificate under Section 4-A was issued on July 7, 1992 (vide annexure 3 the writ petition) granting exemption for a period of five years from March 30, 1990 which was the date of the first sale.
3. However, a note was put in the said eligibility certificate that since the petitioner had misused the exemption hence the actual exemption shall be from March 30, 1990 to July 10, 1991 the date of the alleged misuse.
4. Since nothing was mentioned what misuse had been done by the petitioner nor any reason given, hence a request was made by the petitioner to the Divisional Level Committee to give the details of the alleged misuse vide annexure 4 to the petition. However, no ground or reason of the alleged misuse was given to the petitioner.
5. In this connection a letter dated September 25, 1992 (vide annexure 5) was sent by the Joint Director of Industries to the Deputy Commissioner, Trade Tax to inform the alleged misuse. A perusal of the said letter of the Joint Director, Industries, who is the Convener of the Divisional Level Committee, clearly shows that even he was not aware as to what misuse had been done by the petitioner.
6. The petitioner then filed a writ petition in this Court against restricting the exemption up to July 11, 1991 which was disposed off on July 20, 1993 (vide annexure 6) by which liberty was given to the petitioner to file a review application, and realisation of tax was stayed till the decision of the review application.
7. Thereafter the petitioner filed a review application, vide annexure 7. The said review application has been rejected by the order dated May 10, 1994 vide annexure 9. A perusal of the order dated May 10, 1994, shows that nothing has been mentioned therein except in para 2 that the matter of evasion of tax subsists. However, no details have been given as to what evasion of tax has been done by the petitioner.
8. Against the aforesaid order, the petitioner has filed the present writ petition.
9. A perusal of the letter dated September 25, 1992 (annexure 5 to the writ petition) clearly establishes that even the Convener of the Divisional Level Committee was not aware exactly what misuse had been done by the petitioner since there was nothing on the record to demonstrate in what manner the misuse of exemption was done by the petitioner.
10. A division Bench of this Court in Saberina Oil Industries Pvt. Ltd. v. State of U.P. 1996 UPTC 341 has observed :
Attempt to evade the tax cannot be a ground for refusing the exemption under Section 4-A and for tax evasion a different consequence shall flow and for that reason the review application cannot be rejected.
11. In view of the aforesaid decision of the division Bench of this Court in the case of Saberina Oil Industries Pvt. Ltd. 1996 UPTC 341, the order dated May 10, 1994 rejecting the review application is liable to be set aside.
12. The order dated May 10, 1994 cannot be supplemented or justified by the grounds taken in the counter-affidavit.
13. In view of the law laid down by honourable the apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, New Delhi , the order passed by the Divisional Level Committee cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In para 8 of the said decision the Supreme Court observed :
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhanji :
Public orders publicly made, in exercise of a statutory authority, cannot be considered in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to who they are addressed and must be construed objectively with reference to the language used in the order itself :
Orders are not like old wine becoming better as they grow older.
14. Hence the various facts mentioned in the counter-affidavit can neither be relied upon nor can be taken to support the order dated May 10, 1994. For the first time certain allegations have been made in the counter-affidavit which were neither known to the Divisional Level Committee nor were brought on the record of the Divisional Level Committee as is clear from the letter of the Convener of the Divisional Level Committee dated September 25, 1992 (annexure 5 to the writ petition).
15. In the counter-affidavit it is alleged in paras 10 and 11 that Bill No. 831 dated July 11, 1991 was issued by the petitioner-firm and but on checking it was found that the goods belonged to a sister concern, viz., Shilpa Industries, and the material were sold to M/s. New Singh Book Depot, Fatehpur under the coverage of the said bill issued by the petitioner. Hence it is alleged that the petitioner indulged in evasion of tax by the malpractice of issuing bills in its own name for the goods belonging to another firm.
16. These allegations have been refuted in paragraphs 6, 8 and 9 of the rejoinder-affidavit.
17. In paragraph 8 of the rejoinder-affidavit it has been mentioned that the petitioner had not booked the material of Shilpa Industries. Shilpa Industries, sold the goods by its bill No. 489 dated July 13, 1991, for a sum of Rs. 19,929 to the Fatehpur dealer on which the tax was deposited by Shilpa Industries with the Trade Tax Department at the time of filing of the return, and the entire allegations to the contrary mentioned in paragraph 10 of the counter-affidavit have been denied.
18. So far as the allegation regarding detention of the goods by a Mobile Squad, it is stated in paragraph 9 of the rejoinder-affidavit that the goods were detained by the Sales Tax Officer, Mobile Squad, Fatehpur, and a show cause notice No. 19 dated July 16, 1991 was issued in the name of Shilpa Industries, since bill No. 489 dated July 13, 1991 for a sum of Rs. 19,929 of Shilpa Industries was already there, on which the tax was also deposited by Shilpa Industries. The goods were released on furnishing security by Shilpa Industries and no penalty was ever imposed in pursuance of the said detention or seizure of the goods, which was detained by the S.T.O, Mobile Squad, Fatehpur. It is alleged that no misuse was ever done by the petitioner.
19. We are of the opinion that since these facts have been disclosed for the first time in the counter-affidavit by the respondent which are neither mentioned in the original eligibility certificate nor in the order rejecting the review application, hence they cannot be looked into.
20. In view of the above, the order dated May 10, 1994 rejecting the review application is set aside and the petitioner is held to be entitled for the eligibility certificate for the entire period of five years from March 30, 1990.
21. If any evasion of tax has been done by the petitioner, as alleged in the counter-affidavit (though denied by the petitioner) that can be taken care of in the regular assessment proceedings as held by the division Bench of this Court in the case of Saberina Oil Industries Put. Ltd. 1996 UPTC 341.