# M/s Emami Ltd v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-05
- **Case number:** Civil Misc. Writ Petition No. 1676 (Tax) of 2007
- **Bench:** Sushil Harkauli, Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-emami-ltd-v-state-of-u-p-and-others-40980
- **Pages:** 3

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
9. Thus the Full Bench has clearly
laid down that at ad hoc services prior to
regularisation under 1979 Rules cannot be
reckon for seniority. The Full Bench
judgment in Farhat Hussain's case
(supra) squarely covers the present case
and in view of the said judgment no
infirmity is found in the order impugned
rejecting the claim of the petitioner. The
judgment of the Apex Court in Rudra
Kumar Sain's case (supra) was a case
considering different set of rules, namely,
Delhi Higher Judicial Service Rules, 1970
where ad-hoc appointment was made on
the recommendation of the High Court
and due to the above, the Apex Court laid
down that ad-hoc services of Additional
District Judges be also reckon for
seniority. The above case is clearly
distinguishable and does not help the
petitioner in the present case. The criteria
for
determination
of
seniority
in
accordance with the U.P. Government
Service Seniority Rules, 1991 is from the
date of-substantive appointment. The date
of
substantive
appointment
of
the
petitioner has rightly been treated as 8th
January, 1981 after his regularisation in
services, which does not suffer from any
error.

10. No error has been committed by
the Additional Director of Education in
rejecting the claim of the petitioner of
seniority from the date of his initial adhoc/temporary appointment. No good
ground is made out to interfere with the
impugned order.

The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2007

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 1676 (Tax) of
2007

M/s Emami Limited

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar
Sri Praveen Kumar

Counsel for the Respondents:
S.C.

U.P. Trade Tax Act, 1948-Section-10 (8)-
words and phrases word-satisfaction of
the assessing authority-demand of Bank
guarantee/cash-commercial
establishment continuing part several
years-assessee suffers from blockage of
capital-held-neither beneficial to trade
tax department nor government for
utilization-direction issued for security
other than cash or bank guarantee.

Held: Para 4

However, where the assessee has an
established
commercial
concern
of
substantial size, continuing over past
several years and is an existing tax
payer, demanding of bank guarantee
may not be desirable except where there
are cogent reasons for requiring bank
guarantee as security. The reason is that
most
Banks
require
pre-deposit
of
equivalent amount of cash for giving of
Bank-guarantee.
Thus
while
the
assessee suffers due to blockage of his
business capital, a bank guarantee does
not give any advantage, benefit or gain
to the trade tax department/Govt., in as
much as the money is not available to
1 All] M/s Emami Ltd. V. State of U.P. and others
29
the trade tax department/Govt. for
utilization.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. We have heard both sides and we
are of the opinion that this writ petition
can be finally disposed of at this stage
itself.

2. By Section 10 (8) of the U.P.
Trade Tax Act, 1948, the Assessing
Authority has been given the right to
demand ''adequate' security to ''its
satisfaction".

3.

What
security
would
be
adequate, and what security would satisfy
the Assessing Authority would obviously
be in the discretion of the Assessing
Authority. But no such discretion can be
arbitrary or whimsical; it must be
exercised on logical considerations. Also
it would appear to be desirable on part of
the Assessing Authority to mention those
reasons, at least briefly, in the order if the
order requires giving of cash or bank
guarantee as security.

4. By way of example, where the
assessee, for the reasons indicated in the
order of the Assessing Authority, is
considered not very reliable because of
which it appears to be necessary to protect
the Revenue's interest more securely, the
Assessing Authority may be justified in
demanding bank guarantee by way of
security, which is definitely a more
reliable security than the other forms of
securities. Cash security may be justified,
if the Assessee is totally untrustworthy.
However, where the assessee has an
established
commercial
concern
of
substantial size, continuing over past
several years and is an existing tax payer,
demanding of bank guarantee may not be
desirable except where there are cogent
reasons for requiring bank guarantee as
security. The reason is that most Banks
require pre-deposit of equivalent amount
of cash for giving of Bank-guarantee.
Thus while the assessee suffers due to
blockage of his business capital, a bank
guarantee does not give any advantage,
benefit
or
gain
to
the
trade
tax
department/Govt., in as much as the
money is not available to the trade tax
department/Govt. for utilization.

5. Judged on these parameters we
are of the opinion that on the facts of the
present case the Assessing Authority was
not justified in demanding bank guarantee
as security.

6. We, therefore, dispose of this writ
petition finally after hearing the learned
counsel for the petitioner and the learned
Standing Counsel with the direction that
the security to be furnished under Section
10(8) by the petitioner will be to the
satisfaction of the Assessing Authority,
but will be other than cash or bank
guarantee.

Let a certified copy of this order be
issued to the parties on payment of
requisite charges within 48 hours.
---------
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 28969 of
2007

Awadhesh Kumar & others ...Applicants
Versus
State of U.P. and another...Opp. Parties

Counsel for the Applicants:
Sri R.S. Ram
Sri Paras Nath Bind

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 2
(d)-Explanation-complaint-charge sheet
under
323/504
IPC-fined-non
cognizance offence-Magistrate to proved
treating
as
complaint
case-order
impugned-not sustainable.

Held: Para 4

Therefore, on the basis of aforesaid
Explanation, which has been interpreted
in a single Judge decision of this Court in
Dr. Rakesh Kumar Sharma vs. State of
U.P. and another, 2007 (9) ADJ 478, it
has been held that when the chargesheet is only of non cognizable offences,
in view of the aforesaid provision, the
charge-sheet should be treated as a
complaint. The argument is well founded
and the order taking cognizance is set
aside.
Case law discussed:
2007 (9) A.D.J.-478

(Delivered by Hon'ble Amar Saran, J.)

1. Heard learned counsel for the
applicants and the learned A.G.A.

2. Learned A.G.A. concedes that no
useful purpose would be served in issuing
notice to the opposite party No. 2, as it
would only lead to delay of disposal of
this application and prays that the
application may be decided at this state
after hearing learned counsel for the
applicants and State.

3. An order dated 6.9.2007 taking
cognizance has been challenged in this
case and it is argued that charge sheet has
only been submitted under Sections 323,
504 I.P.C. Reliance has been placed on
the Explanation of Section 2 (d) of Code
of Criminal Procedure, which reads as
follows:-

"Explanation-A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed
to be a complaint; and the police officer
by whom such report is made shall be
deemed to be the complaint."

4. Therefore, on the basis of
aforesaid Explanation, which has been
interpreted in a single Judge decision of
this Court in Dr. Rakesh Kumar Sharma
vs. State of U.P. and another, 2007 (9)
ADJ 478, it has been held that when the
charge-sheet is only of non cognizable
offences, in view of the aforesaid
provision, the charge-sheet should be
treated as a complaint. The argument is
well founded and the order taking
cognizance
is
set
aside.
Now
the
Magistrate may pass an order taking
cognizance
if,
he
so
chooses,
by
proceeding in this matter as a complaint
case under Chapter XV of the Code of
Criminal Procedure. He can also keep this
fact in mind that in view of Proviso (a) to