# Brooke Bond India Ltd v. State of U.P. and another

- **Citation:** (2000) 3 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-03-31
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brooke-bond-india-ltd-v-state-of-u-p-and-another-39512
- **Pages:** 4

## Text

303 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

9. There is yet another reason for
quashing the order of respondent no. 1 He
has taken the view that since petitioner
did not file his mark sheet of B. Ed. prior
to 30.31998 he was ineligible and could
not file it subsequently. But the mistake
committed by his was that he did not
appreciate the purpose and effect of the
new-item. The petitioner has applied
within time. He has filed his certificates.
He claims to have filed the mark sheet.
But the absence of mark sheet for B. Ed.
prevented the department from calculating
his quality point marks. That is why, even
with high percentage his name did not
find place in the list. But when the
Government itself invited applicants to
make representation if the quality point
marks was more than the prescribed nom
and the petitioner produced the mark
sheet then there was no justification to
ignore it. The application was complete.
The petitioner was eligible as he was B.
Ed. But he was not selected as his quality
point could not be ascertained. Once this
deficiency was removed on governments
own asking he could not be ignored. The
failure to attach mark sheet did not make
his ineligible. It was a defect which could
be rectified at any time. Since the
Government
itself
permitted
the
candidates to make representation, if they
have been overlooked for any reason, the
respondent no. 1 acted illegally in
insisting that the mark sheet could not be
filed later, as the petitioner's application
due to this defect was incomplete and he
was ineligible.

10. In the result this petition
succeeds and is allowed The order dated
31.3.2000 passed by respondent no. 1
Annexure-4 to the writ petition is
quashed. Since the mark sheet of B. Ed.
filed by petitioner was not disputed, the
respondent no. 1 is directed to calculate
his quality point mark and grant him
admission to Special BTC Training
Course. The petitioner has completed his
training.
He
shall
be permitted to
complete practical training and appear in
the examination as directed by this Court
on 9.12.1999 paragraph 13 (ii) of the
order in Civil Misc. Writ Petition No.
19715 of 1999 Smt. Manju Devi v.
Director, Rajya Shaikshik Anusandhan
Aur Prashikshan Parishad, Uttar Pradesh
and others. The aforesaid directions shall
be complied by respondent no. 1 within
one month from the date a certified copy
of this order is produced before him.

11. Parties shall bear their own
costs.

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3All] Brooke Bond India Ltd. V. State of U.P. and another 304
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 837&
By the Court

1. Heard Sri Bharatji Agarwal,
learned counsel for the petitioner, and
learned Standing Counsel.

This writ petition has been filed for a
writ of certiorari to quash the impugned
recovery proceeding including recovery
certificates which are Annexures 5,6 and
7 to the petition for the assessment years
1976-77 , 1977-78, and 1978-79 under
Section 8 of the U.P. Sales Tax Act. It
has also been prayed that a refund be
granted
to the petitioner for these
assessment years in respect of which it
deposited the amounts on 3.8.1984. The
further prayer is that the respondent
should
not
realise
interest
for
the
subsequent assessment years in respect of
advance estimated tax deposited by the
petitioner in subsequent months.
2. The petitioner is a public limited
company which carries on the business of
tea, coffee, etc. Under Rule 41 (1) of the
U.P. Sales Tax Rules the petitioner is
required to furnish monthly returns. Rule
41 prescribed the period and manner in
which returns are to be filed. The second
proviso of Rule 41 which is relevant in
this case reads as follows:
" Provided further that the dealer may
instead of submitting a return as aforesaid
estimate his turnover for the year on the
basis of the turnover admitted by him in
his return, or disclosed in his account
books, whichever is greater, for the
immediately preceding year, Calculated
the amount of tax payable thereon and
deposit a sum equal to one-twelfth
thereon during each of the first two
months of every quarter, and deposit the
balance of tax due on the turnover
admitted by him in his return for the
relevant quarter, quarter, which shall be
prepared and submitted in the manner laid
down in his rule."

By virtue of said proviso, instead of
filing the return every month, a dealer can
opt to file the return quarterly, but for this
concession, he has to pay tax in the first
two months of the quarter at the average
of the tax on the turnover admitted by him
in his return or as disclosed in his account
books, whichever is greater, for the
immediately preceding year and he has to
deposit the tax during the month itself and
cannot postpone till the end of the
succeeding month.

3. The petitioner opted for the
procedure
prescribed
in
the
second
proviso and instead of filing return month
to month basis it filed quarterly return in
305 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
which entire tax was deposited. For the
first two months of each quarter the
petitioner had paid tax at 1/12th of the tax
of the immediately preceding year. For
the month of April 1/12 of the tax was to
be paid in the month of May and for the
month of May it was to be paid in the
month of June. However, the petitioner
deposited the entire tax for the first
quarter ending June along with the
balance amount of tax with the quarterly
return itself.

4. It has been stated in paragraph 7
of the writ petition that no objection was
ever raised by the department at any time
and not only the petitioner but various
dealers had been depositing the advance
tax for the month of April in the month of
May and similarly estimated advance tax
for the month of May was being deposited
in June every year In paragraph 8 of the
petition it is stated that similar practice
was followed by all the dealers of the
State in U.P. and estimated advance tax in
the first two months of every quarter was
deposited in the next succeeding month
and the department has always been
accepting the same without any objection.
However, the respondent no. 2 issued
notice dated 30.3.1984 for the assessment
years in question under the U.P. Sales Tax
for imposing of interest. True copies of
these notices are Annexures 1, 2 and 3 to
the petition. The petitioner submitted a
reply contending that it has no liability of
tax in respect of advance estimated tax
deposited
by
the
petitioner..

The
petitioner also referred to the regular
practice
of
the
department
in this
connection.
5. It is contended by the petitioner
that interest is payable under Section 8 on
the tax which is admittedly payable as
defined under the explanation of Section
8(1). The deposit of tax at 1/12th of the
estimated advance tax does not fall under
the category "tax admittedly payable" as
defined in the explanation and hence no
interest was payable by the petitioner.
True copy of the petitioner's reply is
Annexure 4 to the petition. Thereafter the
impugned
recovery
certificates
were
issued vide Annexures 5,6 and 7 of the
writ petition.

6. In paragraph 18 of the petition it
is stated that the Commissioner of Sales
Tax issued a circular dated 1.4.1982 in
which it is stated that the tax for the
month of April should be deposited in the
month of April itself and similarly 1/12th
of the amount of tax for the month of May
should be deposited in the month of May
itself. True copy of the circular is
Annexure 8 to the petition. Accordingly
the petitioner made deposits but the
petitioner wrote to respondent no. 2 to
withdraw the recovery certificate as the
petitioner was not liable to pay any
interest. The petitioner has contended that
it was not liable to pay the interest and
hence the amount deposited should be
refunded with interest.

7. A counter affidavit has been filed
and we have perused the same. In
paragraph 5 of the same it is alleged that
under Rule 41(1) the tax of April should
be deposited in April itself and hence the
contention of the petitioner is not correct
similarly in paragraph 8 it is stated that
the interest becomes payable when the tax
is deposited late. In paragraph 9 it is
stated that since the petitioner did not
comply with Rule 41(1) hence interest has
to be charged.

8. In our opinion the contention of
the learned counsel for the petitioner is
3All] Hansh Raj Singh V. The Managing Director and others 306
correct. Interest is payable under
Section 8(1) on the tax which is
admittedly payable as defined in the
explanation to Section 8(1). The deposit
of tax by the petitioner at 1/12th of the
estimated advance tax could not be
regarded as tax admittedly payable. Since
the tax admittedly payable is calculated
on the turn over as disclosed monthly
deposits merely represents 1/12th of the
deposit on advance tax on the basis of the
previous year's liability. It is not the tax
calculated on the turn over as per account
books or the returns in fact no return is
required to be filed in the first two
months. Hence in the relevant years no
interest could be charged. There is no
doubt about the fact that the entire tax had
been deposited along with the quarterly
returns.

9. Learned counsel for the petitioner
has relied on the decision of this Court in
M/s Agarwal Automobiles Vs CST 1997
UPTC 843 and we fully agree with the
view taken in the aforesaid decision.
Learned Standing Counsel submitted
that against the impugned order the
petitioner has right of appeal and hence
the petition should be dismissed on the
ground of alternative remedy. We are not
inclined to accept this argument because
the writ petition was filed in the year 1984
and hence it would not be proper to
dismiss the petition on the ground of
alternative remedy after a lapse of 16
years. It is settled law that alternative
remedy is not an absolute bar.

10. Learned Standing Counsel has
submitted that in paragraph 6 of the
judgment of this Court in Agarwal
Automobiles Case (Supra) which has
been relied upon by the learned counsel
for the petitioner it has been stated that
the assessee has to deposit the tax during
the month itself and cannot postpone it till
the end of the succeeding month. Learned
counsel for the petitioner does not dispute
this proposition but it is not the admitted
tax as contemplated under Section 8(1) of
U.P. Trade Tax Act as no return are
required to be filed for the first two
months of the quarter when a dealer
resorts to the second proviso of Rule 41.
Hence the tax payable by him according
to monthly average of the preceding year
cannot be treated as the tax admittedly
payable by the dealer.

11. In fact for this reason the
contention
of
the
learned
Standing
Counsel in Agarwal Automobiles case
(supra) has been rejected in paragraph 11
of that decision.

12. For the reasons mentioned above
the writ petition is allowed and the
amount of interest deposited by the
petitioner is directed to be refunded for
the assessment years 1976-77, 1977-78
and 1978-79 with interest at Rs. 12%
from the date of deposit till the date of
refund within 3 months of production of
copy of this order before the assessing
authority.

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