TMI Blog2003 (1) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... had been awarded three civil works contracts as stated in paragraphs 4,5 and 6 to the writ petition. Photocopies of the works orders are annexures 2,3 and 4 to the writ petition. A perusal of the same shows that it involved civil work including earth work, development of the area, construction of road, walkways, landscaping, etc. Under section 2(h) of the U.P. Trade Tax Act, 1948 the transfer of property involved in the execution of a works contract is treated as sale. Under section 3-F of the Act tax is imposed on transfer of property in goods involved in execution of works contract. Section 3-F has been quoted in paragraph 8 of the writ petition. 4.. Section 7-D of the U.P. Trade Tax Act, 1948 provides for composition scheme for paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks the provisions of section 7-D and this condition is contrary to the law laid down by the honourable apex Court and is also contrary to the object of section 7-D of U.P. Trade Tax Act which provides for levy of composition amount in lieu of the tax which is payable under the U.P. Trade Tax Act. 10.. In paragraph 27 of the writ petition it is stated that the petitioner has received goods from outside U.P. for executing the aforesaid works contract up to March 31, 2001 to the extent of approximately 35 per cent of the total contract value, whether it is by way of stock transfer or whether these are purchases/sales in the course of inter-State trade and commerce. 11.. It is alleged in paragraph 29 of the writ petition that if these good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount was condition mentioned in the scheme of the State Government. It was for the petitioner either to opt for the scheme or not. In the proforma of the application an affidavit had to be filed under section 7-D. It is mentioned that the conditions and directions given by the State Government must be acceptable to the dealer. It is only when both the sides are agreeable that an agreement of composition can be entered into between the parties. Hence if the petitioner was not agreeable the petitioner should not have opted for composition and he could get himself assessed by way of regular assessment under the U.P. Trade Tax Act. 15.. A rejoinder affidavit has also been filed and we have carefully perused the same. 16.. Section 7-D of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contractor who elects to be governed by the said alternate method of taxation. There is no compulsion upon any contractor to opt for the method of taxation provided by sub-section (7) or sub-section (7A). It is wholly within the choice and pleasure of the contractor. If he thinks it is beneficial for him to so opt, he will opt; otherwise, he will be governed by the normal method of taxation provided by section 5(1)(iv). Sub-section (8) provides that the option to come under sub-section (7) or (7A) has to be exercised by the contractor 'either by an express provision in the agreement for the contract or by an application to the assessing authority, to permit him to pay the tax in accordance with any of the said sub-sections'. In these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide for such partial composition for only a certain class of goods and not for another class of goods. 22.. Shri Bharat Ji Agrawal, learned counsel for the petitioner submitted that there cannot be both composition as well as regular assessment in respect of the same assessment year. For the reasons already given above we cannot accept this submission. Section 7-D itself contemplates such a partial composition, as mentioned above. 23.. It may be mentioned that section 7-D is in the nature of a concession given to the dealer for avoiding harassment and hassle. If he is not satisfied with the composition scheme he is not obliged to accept the same. We see no illegality in the impugned clause of the composition scheme nor in the circula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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