Janta Machine Tools Vs. State of U.P. and ors. - Court Judgment

Excerpt:
sales tax - exemption - section 4-a of uttar pradesh sales tax act, 1948 - petitioner applied for exemption from sales tax in term of notification issued by state government under section 4-a on 30.09.1982 - application of petitioner rejected on ground that date of trial production was really date of commencement of production and this fell prior to 01.10.1982 - no evidence or material on basis of which petitioner's claim that it started production in december 1982 could have been rejected - denial of exemption to petitioner under notification not justified - appellant entitled to exemption in terms of notification - appeal allowed. - [p.b. gajendragadkar, c.j.,; k.n. wanchoo,; n. rajagopala ayyangar,; j.c. shah, jj.] the appellant and his mother (the lessors), granted a lease of an open site in the town of coimbatore to abirama chettiar under a registered 'deed dated september 19,1934. the annual rent stipulated under the lease was rs. 10,80 and the period of the lease was 20 years. the term under the lease was that the land was to be utilised for constructing buildings thereon for "purposes of cinema. drama etc." it was further agreed between the parties that at the end of the term the lessee would demolish the buildings which he had. constructed and deliver vacant possession of the site lo the lessor. abirama chettiar constructed a theatre on the site, and assigned his rights to the respondent-company. in an action against the company for a decree in ejectment and for mesne profits, the trial court awarded to the lessors a decree for possession and mesne profits. against the decree the company-respondent preferred an appeal to the district court which was transferred for trial to the high court. during the pendency of this appeal, the state of madras extended the madras city tenants' protection act, 3 of 1922, as amended by madras act 19 of 1955 to the municipal town of coimbatore. the company then applied under a. 9 of the act and on this application the high court directed that the lessors do sell to the company the site in dispute under s. 9 of the madras city tenants protection act, 1922. against payment of the full market value of the land on the date of the order. the order was confirmed in an appeal under the letters patent held: per gajendragadkar, c.j., shah and sikri, jj. section 12 has been enacted to protect the tenants against any contractual engagements which may have been made expressly or by implication to deprive themselves wholly or partially of the protection intended to be conferred by the statute. and the only class of cases in which the protection becomes ineffective is where the tenant has made a stipulation in writing registered as to the erection of buildings, erected after the date of the contract of lease. the stipulations not protected in s. 12 are only those in writing registered and relate to erection of buildings. such as restrictions about the size and nature of the building constructed, the building materials to be used therein and the purpose for which the building is to be utilised. (ii)section 9(1) of the act was manifestly in the interest of the general public to effectuate the mutual understanding between the, landlords and the tenants as to the duration of the tenancies, and to conserve building materials by maintaining existing buildings for purposes for which the leases were granted. restriction imposed upon the right of the landlord to obtain possession of the premises demised according to the terms of the lease would, therefore not be regarded as imposing an unreasonable restriction in the exercise of the right conferred upon the landlord by art. 19(1) of the constitution, because the restriction would be regarded as one in the interests of the general public. what s. 9 does is not so much to deprive the landlord of his property or to acquire his rights to it as to give effect to the real agreement between him and his tenant which induced the tenants to construct his building on the plot let out to him. if the law is not invalid as offending art. 19(1)(f) of the constitution, no independent infringement of art. 31(1) of the constitution may be set up. per wanchoo and ayyangar, jj (dissenting) (1) the preamble of the act would indicate that the act would not apply to afford protection in a case where by an express term in a registered lease deed a tenant agreed to surrender the site on which he had erected a building, where he specifically contracted that he would demolish the building and deliver vacant possession of the site on the termination of his tenancy. if the scope of the proviso to s. 12 had to be construed in the light of the preamble, it is obvious that the tenant who had entered into a contract with a stipulation of the sort as stated above could not be said to have constructed the buildings on another's land "in the hope that he would not be evicted so long as he pays rent for the land". the high court erred in interpretting the proviso to s. 12 of the act. (ii) these words "as to the erection of buildings" mean a stipulation which bears on or is in relation to the erection of buildings. such a construction would reconcile the proviso with the preamble which sets out the object sought to be achieved by the act. if the lease deed contains no stipulation whatsoever in regard to the erection of buildings, as was the case with the large number of leases in the city of madras which were entered into prior to the enactment of the act in 1922, the tenant who erected the building exconcessis without contravening any undertaking on his part, obtains protection under the act. the test would therefore be "did the parties advert to and have in mind the lontingency of the tenant erecting buildings on the leased land"? if they had and had included in a solemn registered instrument a provision which would bear upon the relative rights of the parties in the event of the erection of buildings on the site, the stipulation would have effect notwithstanding the act; for in such an event the tenant would not have constructed buildings on the land in the hope that he would not be disturbed from possession so long as he paid the rent agreed upon. - 2.70.590/-.the general managers of the district industrial centers at deoband and saharanpur and the assistant engineer of the industrial state of roorkee endorsed the following recommendation on the application: i am fully satisfied with the facts produced by the unit and i recommend that this unit is eligible to get exemption from sales tax/inter state sales tax.murari mohan dutt, j.1 the petitioner is a concern engaged in the business of manufacture of electric motors, pump sets and their parts. it applied for exemption from sales tax in respect of the goods manufactured by it in terms of a notification issued by the state government on 30.9.1982 under section 4a of the uttar pradesh sales tax act, 1948 (hereinafter called the 'act'). this application was rejected by a division level committee by an order dated 9.2.1987 and a further review application was also dismissed on 27.10.1987. thereupon the appellant filed a writ petition which was also rejected by the high court by a short order dated 7.12.1987. aggrieved by this denial of the exemption, which it claims it is entitled to, the appellant has preferred this appeal.section 4a of the act reads as under:4-a. exemption from sales tax of certain goods for specified period-(1) notwithstanding anything contained in section 3 or section 3-a, where the state government is of the opinion that it is necessary so to do for increasing the production of any goods or for promoting the development of in any districts or parts of districts in particular, it may on application or otherwise, by notification, declare that the turnover of sales in respect of such goods by the manufacturer thereof shall, during such period not exceeding seven years from the date of starting production by such manufacturer, and subject to such conditions as may be specified, be exempt from sales tax or be liable to tax at such reduced rate as it may fix.(2) it shall be lawful for the state government to specify in the notification under sub-section (1) that the exemption from, or reduction in, the rate of tax shall be admissible-(a) generally in respect of all such goods manufactured subsequent to the date of such notification; or(b) in respect of such of those goods only as are manufactured in a new unit, the date of starting production whereof falls on or after the first day of october, 1982; or(c) only if the manufacturer had not discontinued production of such goods for a period exceeding six months at a stretch in any assessment year.explanation- for the purposes of this section-(i) 'new unit' means a factory or workshop using machinery, accessories or components not already used or acquired for use in any other factory or workshop in india but does not include any factory or workshop established on the site of an existing factory or workshop manufacturing the same goods or any addition to or extension of an existing factory or workshop; and(ii) 'date of starting production' means the date on which any raw material required for use in the manufacture or packing of the specified goods is purchased for the first time or the date of installation of power connection, where needed, whichever is later.2. in pursuance of the above section, the state government published a scheme for the grant of exemption from sales tax to certain industrial units in he state. the scheme, according to its introduction, had been introduced in order to encourage capital investment and establishment of new industrial units in the state' it wanted exemption to the industrial units established in certain areas of the state during the period from 1.10.1982 to 31.3.1985 and producing certain categories of goods. it is not necessary to refer in detail to the provisions of the scheme or other conditions of exemption it is sufficient to say that this exemption was conferred only on units established on or after 1.10.1982 but before 31.3.1985 the scheme also makes it clear that though it referred to units 'established' this really is a reference to the date of commencement of production by the industrial unit. this is also in accord with the terms of the statute and in particular sub-section (2) of 4a. the appellant's claim to exemption has been rejected on very short ground, namely, that it had not commenced production after 1.10.1982.3. in the application filed by the appellant for exemption the appellant had mentioned that the date of actual commencement of use of electricity for production was the 4th of december, 1982, which was also the actual date of commencement of production the appellant also claimed that upto 30.9.1984 it had produced and sold electric-motor parts for rs. 2.70.590/-. the general managers of the district industrial centers at deoband and saharanpur and the assistant engineer of the industrial state of roorkee endorsed the following recommendation on the application:.i have checked with the use of power and other sources that the unit started actual production from 4.12.1 982 and the production made is self manufactured and is within the prescribed production capacity. i am fully satisfied with the facts produced by the unit and i recommend that this unit is eligible to get exemption from sales tax/inter state sales tax...with effect from date of production commencement for 5-6-7 years under section 4-a of the sales tax act vide g.o. no. 8244-bha/l8-l 1-231(a) bha/39, dated4. the difficulty in the appellant's way appears to have been created by a certificate which had been produced by it before the division level committee along with its application. this purported to be a certificate by a firm known as krishna trading co. (in which the proprietor of the appellant was a partner). this certificate dated 4.12.1981 reads as follows:it is certified that the trial production of kupla bhatti was made today is 4.12.1981 expenses for which were incurred by our company by purchasing raw material for its own expenses under the agreement dated 15.5.1981 entered into, m/s. janta machine tools was assured by the company to supply very soon all the remaining machines and installing them and making its trial production at its own expenses.5. the division level committee, while rejecting the application dated 9.2.1987, essentially gave only one reason for the rejection it was stated that the date of the alleged trial production was really he date of commencement of production and this fell prior to 1.10.1982.6. as stated earlier the assessee preferred a review application pointing out that the trial production could not be treated as commencement of actual production. this review application was disposed of on 27.10.1987. in its order the committee observed:on joint inquiry into the reality of your unit being conducted by the general manager and sales tax officer of deoband industries department they have reported that shri suresh datt sharma the proprietor of m/s. janta machine tools is partner of one third share in m/s. krishna trading company also. no purchase of raw material was declared by m/s. krishna trading company in the year 1981-82, and therefore, the certificate of trial production issued by m/s. krishna trading company on 4.12.1981 is baseless and untrue. in joint inquiry report it is also clear that your unit has purchased from m/s. krishna trading company kupla etc. of rs. 69.000/- on 21.5.81, whereas m/s. krishna trending company have declared sale of rs. 13,035/- only in 1981-82 as per file of the sales tax department. in the joint inquiry report it is also mentioned that your unit got electricity on 21.11.1982 and on inquiry the unit informed that the trial production was done with the help of a generator your unit could not give any certificate for purchasing or hiring a generator and now it has declared to have hired the generator for 4-5 hours from m/s. mitra industries deoband. in the inquiry report it is also made clear that a unit cannot use a generator of other unit without prior permission of the electricity department.xxxxon the above discussion it is concluded that the unit in question wants to (get) illegal benefit of exemption from sales tax by producing wrong facts. the trial production done by m/s. krishna trading company on 4.12.1981 is proved to have been done by the unit in question itself and not by them. thus, the unit was established before 1.10.82. the unit established before 1.10.82 is therefore not entitled to exemption from sales tax.7. in our opinion, the rejection of the assessee's application proceeds on a total misconception of the facts. the conclusion of the division '. level committee is that production was commenced by the appellant on 4.12.81 but this conclusion is based on no evidence. it is true that the appellant produced a certificate showing that some production was done on 4.12.1981 but the appellant's case was that this was merely a trial production. it is not quite clear whether the district level committee completely doubts any trial production having taken place at all, or whether its conclusion is that there was a trial production, on 4.12.1981. if its conclusion is the former one, it does not affect the appellant's claim. assuming that the committee has come to the conclusion that the production on 4.12.81 was conducted not by m/s. krishna trading company but by the appellant itself, the fact still remains that what had happened on that date was only trial production. the mere fact that, a certificate by m/s. krishna trading is disbelieved cannot lead to the conclusion that the assessee had produced goods on 4.12.81. if one is to go by the definition contained in the explanation to section 4a for determining when the production started, one has to concentrate on the dale of purchase of raw materials or on the date on which the electricity was brought into use for commercial production. the appellant's claim that it had manufactured goods by 30.9.1984 is not denied. production had, therefore, commenced before 31.3.1985. there is no suggestion by the department or the committee, and there is no material to show that the appellant had purchased raw materials sufficient to carry out normal commercial production at any time prior to 1.10.82. it is an admitted fact that the assessee was able to obtain electricity for use for commercial production only in november 1982 this lends support to the appellant's contention that the production could not have been effected by the assessee prior to that date. in fact, this is a point on which emphasis is laid in the order dated 27.10.1987. that being so, there is no iota of evidence or material on the basis of which the appellant's claim that it had started production in december 1982 could have been rejected. on the other hand, the recommendation and endorsement of the general manager, district. industries center, which has been extracted earlier, also supports the appellant's contention that it had started production on 4.12.82 and this report was given after verifying the actual position on the spot.8. for the reasons above mentioned we are of the opinion that the denial of the exemption to the appellant under the notification dated 30.9.82 was not justified. the rejection of the appellant's application in this regard is quashed and the appellant is declared entitled to the exemption in terms of the notification. we should not be understood, however, to have expressed any opinion as to the amount of exemption available to the appellant under the notification. that will be a matter for consideration of the authorities in respect of each of the years concerned in respect of which the claim is made for exemption.9. the appeal stands allowed, but in the circumstances, we make no '. order as to costs.