JUDGMENT :

1. Heard Sri Pradeep Agrawal, learned counsel for the revisionist as well as Sri Rohit Nandan Shukla, learned counsel for the opposite party.

2. Present revision under Section 11 of the U.P. Trade Tax Act, 1948, has been preferred assailing order dated 05.11.2004, passed by the Commercial Tax Tribunal, U.P., Lucknow (hereinafter referred to as "the Tribunal"), on the following questions of law :-

(i) Whether the learned Tribunal was justified in not considering the decision of this Hon'ble Court in the case of Kanhaiya Beverages Pvt. Ltd. wherein it has been specifically held that the ownership of the land in the name of the Promotor Director can be considered to be the land of the unit and the grant of eligibility certificate can not be refused.

(ii) Whether the learned Tribunal was justified in not considering the fact that the final registration with the Industries Department was in continuation of the provisional registration granted in 1996 and 2001.

(iii) Whether the learned Tribunal was justified in twisting the fact of the case and without proper appreciation of fact has recorded the perverse finding which has vitiated the law.

(iv) Whether the learned Tribunal was justified in holding that the plot no.F-63 allotted in favour of Ajay Kumar Gupta Promotor Director in 1994 will not be deemed to be the plot of the unit until it is registered in the name of unit.

(v) Whether the learned Tribunal was justified in holding that the registration of the plot in the name of unit and the amendment in the registration certificate of the Industries Department are the material dates and as such the applicant is not entitled to exemption under Section 4-A of the Act in view of notification no. 3867 dated 22.12.2001.

(vi) Whether the Tribunal was justified in not considering the basic legislative intent of the provisions of Section 4-A granting incentives for promoting growth and development should be liberally construed.

(vii) Whether the learned Tribunal was justified in ignoring the law laid down by the Apex Court as well as by this Hon'ble Court and passed the impugned order on the basis of extraneous consideration which has vitiated the findings recorded in the impugned order.

3. The revisionist is a smelting unit being run on Plot number 64 Industrial Area Surajpur Site B Greater Noida and had applied under Section 4 [a] of the UP Trade Tax Act (hereinafter referred to as "the Act") for grant of exemption from payment of trade tax under facility available to a newly set up industry. The said application was duly considered by the Divisional Level Committee constituted in this regard, and rejected on the ground that the applicant did not fulfill the conditions laid down in the notification dated 22/12/2001. The application for review was also rejected and consequently the revisionist approached the Full Bench of the Tribunal which rejected the appeal by means of the order dated 05/11/2004, which has been assailed before this court in the present revision.

4. Sri Pradeep Agarwal counsel for the revisionist submitted that the application for exemption under Section 4 of the Act was rejected on two grounds, firstly that the adjacent plot number F 63 was transferred to the revisionist after the due date prescribed in the exemption notification dated 22.12.2001, and also that Sri Ajay Kumar Gupta who was the director of the revisionist and also lessee of plot number 63 did not have any right to transfer the same in favour of the revisions and hence the land was illegally and improperly transferred in name of the revisionist, and secondly the machinery used by the revisionists was not new machinery as prescribed in the exemption notification but old machinery which had been used thereby dis-entitling them for the benefit of the said exemption.

5. The first ground for rejection of the application for exemption was that plot number F 63 was allotted in favour of Sri Ajay Kumar Gupta who was the promoter Director of the revisionist firm on