TaxTMI 
TaxTMI 
2020 (12) TMI 949
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.... by it. 3. Heard Sri Manish Singh and Sri Dileep Singh for the Revisionist and Sri Rohit Nandan Shukla for the State respondents. 4. This case relates not to any alleged avoidance of tax or imposition of Penalty but to the refusal of Assessing Officer to accept the application dated 27.2.2018 filed by the Revisionist praying for issuance of Form D to be utilized by it for benefit of claiming Tax Exemption as per notification issued by the Government dated 3.3.2016. Form D is the prescribed form issued under sub section 3A of Section 4 of U.P. Tax on Entry of Goods into Local Area Act, 2007 (hereinafter referred to as 'the Act 2007') read with sub-rule 1 of Rule 5 of U.P. Tax on Entry of Goods into Local Area Rules, 2008 (hereinafter referred to as 'the Rules of 2008'). 5. Under Section 4 of U.P. Tax on Entry of Goods into Local Area Act, 2007, the State is entitled to levy and realise a tax on entry of goods specified in the Schedule into a local area for consumption, use or sale therein, from any place out of the local area at such rate not exceeding 5% of value of goods as specified by the State Government by notification. Different rates may be specified....
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.... 2015-16. 9. It is the case of Revisionist that it deals with sale and purchase of sugar and Form D is required to be issued to it by its buyers as proof of fact that sugar that is being sold by the Revisionist is exempted from payment of Entry Tax and no Entry Tax has been levied on such sugar. The Revisionist being trader of cane sugar had acquired entire business of M/s. Ritesh Vyaapar Ltd. which company merged into Revisionist's Company under Amalgamation Scheme approved by the High Court of Delhi by order dated 26.2.2016 in Company Petition No.631/2015. 10. Under Sections 391 and 394 of Indian Companies Act, a scheme was formulated for amalgamation of several companies including M/s. Ritesh Vyaapar Ltd. into Revisionist's Company, as a result of which the entire undertaking including properties, rights and powers of the transferor Company stood transferred to the Revisionist. Details of the Scheme of Amalgamation were mentioned in the order of Delhi High Court dated 26.2.2016, relevant paragraphs of which are being quoted hereinbelow" "15. To be noted, the scheme in clause 4.2(k) provides that all employees of transferor companies, in service on the e....
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.... amalgamation order dated 26.2.2016 passed by the High Court of Delhi. The Revisionist had sold 1,19,707 quintals of sugar valued at Rs. 42,67,60,351 to several traders in State of U.P. and 2,13,262 quintals of sugar valued at Rs. 77,20,26,314/- to dealers outside of State of U.P. 13. The Assessing Authority rejected the application of Revisionist dated 27.2.2018 on the ground that Revisionist could not prove that sugar it had acquired from M/s. Ritesh Vyaapar Ltd. had been the exempted sugar stock for Crushing Season 2015-16 under Exemption Notification of 2016. 14. It has been submitted by the learned counsel for Revisionist that all copies of Form K issued online by the department have been filed along with Application for Interim Relief filed in this Revision. Form K issued in favour of original trader M/s. Ritesh Vyaapar Ltd. clearly showed that amount of sugar for which Form K was issued i.e. 10,53,928 quintals. The bills raised by M/s. Bajaj Hindustan Sugar Mill for sale of such sugar to M/s. Ritesh Vyaapar Ltd. have been also filed before this Court and were also filed before the Assessing Authority at the time of consideration of Revisionist's application for iss....
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....Assessment order, there is clear mention of transfer of stock of leftover sugar for the year 2015-16. It mentioned leftover/remaining stock as 3,32,969 quintals. It was same quantity of leftover stock for which Revisionist has requested the Assessing Officer to issue Form D which would then have been filled up by it and later on, issued to subsequent 360 traders/dealers to whom such sugar stock was sold by the Revisionist. 18. It has been submitted that while noting the argument raised by the Appellant, the Tribunal failed to take into account the fact that merger and transfer of stock as a result of amalgamation order of High Court was not in fact purchase of such sugar stock. The Tribunal has while rejecting the Second Appeal referred to two reasons to come to its conclusion. Firstly, transfer of stock had not been done on 1.4.2016 but before that date and it amounted to the Revisionist becoming a subsequent purchaser and initial purchaser M/s. Ritesh Vyaapar Ltd. had failed to issue any certificate as per exemption notification of 2016 in favour of revisionist, secondly it observed that the appellant had failed to prove that sugar stock which was transferred before 1.4.2016 w....
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....hing Season 2015-16 and had been certified to be so produced by M/s. Ritesh Vyaapar Ltd. He has also argued that from perusal of order of Second Appeal it appears that High Court of Delhi's order was not produced by the Revisionist before the Assessment Officer and the Additional Commissioner, Appeals and therefore Revisionist cannot now rely upon the Amalgamation Order in Second Appeal which argument was not pressed before the Assessment Officer and the Additional Commissioner, Appeals. 23. Sri Manish Singh in rejoinder has submitted that from perusal of SA-1 and SA-2 dated 25.3.2019 and 22.10.2019 respectively, it is clear that Assessment Officer has mentioned in Para 3, the purchase of sugar amounting to Rs. 3,28,54,20,634/- as mentioned at Serial no.2 having been bought by M/s. Ritesh Vyaapar from M/s. Bajaj Hindustan Sugar Mill and the the leftover stock has also been mentioned with value of Rs. 105,75,54,980/-. Since it is on a printed Form issued by the Department itself, it does not refer to the quantity of remaining stock, but only refers to the value of such stock. The value mentioned in Para 4 of such order is same value of remaining stock of sugar for which Form ....
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....ed to the same exemption on entry tax as claimed by initial purchaser M/s. Ritesh Vyaapar Ltd. on the basis of Form K issued on purchase of sugar from M/s. Bajaj Hindustan Sugar Mill Ltd. 27. It is also not disputed that only the remaining stock was transferred as M/s. Ritesh Vyaapar Ltd. had sold a major portion of sugar that it had bought from M/s. Bajaj Hindustan Sugar Mill Ltd. during the course of Crushing Season 2015-16. M/s. Ritesh Vyaapar Ltd. was also issued blank Form D by the Assessing Officer on its request which M/s. Ritesh Vyaapar Ltd. utilized in certifying to its respective purchasers/dealers that such sugar had been manufactured during the Crushing Season 2015-16 and no entry tax was levied on the same. Form D issued by M/s. Ritesh Vyaapar Ltd. was accepted by the Department and no questions were asked as is evident from Assessment Order passed in favour of M/s. Ritesh Vyaapar Ltd. copy of which has been filed as annexure to this Revision. Such annexures remain uncontroverted. 28. If M/s. Ritesh Vyaapar Ltd. would have continued to exist then the sugar stock it had remaining on 1.4.2016 would have been entitled to exemption from Entry Tax. If such stock be....