TMI Blog2013 (3) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... pts of the payment - assessee contested against tax levy as there was no such condition restricting the import of goods up to 5 per cent of the contract amount in U.P. VAT Tax Act - Held that:- Admittedly, the petitioner has not opted to pay the composition fee under the new scheme framed under section 6 of the U.P. VAT Act for the subsequent years i.e. 2008-2009. The impugned assessment order is in respect to the Assessment Year 2008-2009 and it shall continue to be governed by the scheme, as it then existed, framed under section 7-D of the U.P. Trade Tax Act. The Assessing Authority, thus, could levy and demand the tax from the petitioner as per the terms of the scheme under which the petitioner had opted and not under the new scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was granted electrical works contracts by various dealers detailed in paragraph-6 of the writ petition. The petitioner opted for composition in respect of the aforesaid contracts by filing the requisite application for compounding. The application for compounding was accepted by the Deputy Commissioner, Commercial Tax, Sector-I, NOIDA and orders dated 25th of March, 2009 and 8th of March, 2011 were passed for the period 2006-2007 and 2007-2008. W.e.f. 1st of January, 2008 the U.P. Trade Tax Act has been repealed and simultaneously the U.P. VAT Act, 2008 was enacted. The latter Act i.e. U.P. VAT Act, 2008 has analogous provision being Section 6 analogous to Section 7-D of the repealed Act. The petitioner did not apply for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been taken for compounding under section 6 of the U.P. VAT Act which has come into effect from 1st of January, 2008 to 31st of March, 2008. Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri C.B. Tripathi, Special Standing Counsel for State of U.P., the Respondent. The learned counsel for the petitioner submits that in view of the fact which are not in dispute, the levy of tax over and above the composition amount on the ground that the petitioner has imported goods in the State of U.P. beyond the specified limit is illegal. There was no such condition in the scheme under which the petitioner had applied for composition of tax. The terms and conditions of composition cannot be changed unilaterally without there bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted can, not turn around and urge that he is not liable to pay any tax for any reason, such as closure of business or low turnover etc. Further, in Kothari Contract Interiors (supra) it has been held that a dealer who has opted to pay the tax in lump sum under Section 7-D of the Act and the said option has been accepted by the department, the demand for that period is not relatable to the actual turn over but to the sum agreed upon. In other words, the department as well as the, dealer both know the amount payable and receivable by each other. The determination of the lump sum in lieu of tax, displaces the requirement of regular assessment proceedings. The qualification of tax liability is by agreement as per terms of the scheme, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imports the goods in State of U.P. beyond the specified limit. However, he maintains that now, such a condition has been incorporated in the new scheme floated under section 6 of the U.P. VAT Act and he wants to read the conditions of new scheme in the old scheme. Attention was invited to the circular letter dated 9.6.2007 issued by the Commissioner, which is in the nature of interdepartmental communication. This provides only this much that the State Government has decided to issue composition scheme, as provided for under section 6 of the U.P. VAT Act for the period 1.1.2008 to 31.3.2008 continuing for subsequent years, a copy of scheme was enclosed. Condition No.5 is relevant for present purposes and it provides that it is for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation of India another Vs. State of U.P. others decided on 6th of August, 2012. The said decision is not at all applicable to the facts of the case as the decision therein was rendered under a different factual matrix and the controversy involved therein was altogether a different one. Challenge in the said writ petition was enhancement of the composition fee from 2% to 4% in the new scheme framed by the State Government under section 6 of the U.P. VAT Act. The contention of the petitioner that under the old scheme the compounding fee was 2% which could not have been enhanced under the U.P. VAT Act to 4% was repelled. There the petitioners had applied under section 6 of the U.P. VAT Act which is no so in the case on hand. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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