TMI Blog2006 (11) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Scheme, introduced by the State Government under section 7D of the Act in respect of the individual civil works contract. Dealers also applied for the issue of certificate for the deduction of the tax at one per cent under section 8D of the Act. Under the Compounding Scheme, dealers were liable to tax at one per cent on the total payment received in respect of civil contracts. The assessing authority vide order dated March 17, 2004 allowed the applications under section 8D of the Act and passed the orders dated March 17, 2004 for the deduction of tax at one per cent. It has been observed that the order passed under section 8D(1) of the Act will have no effect on the application under section 7D of the Act. It appears that along with the applications, copy of the contracts were filed. In any view of the matter, the copies of the contracts were available at the time of consideration of the application under section 7D of the Act, inasmuch as the same is on record. During the course of the proceedings under section 7D of the Act, dealers had filed the complete details of the payment received from the various Government Departments in respect of each contract. The assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, dealer filed appeals before the Tribunal. The Tribunal by the impugned order allowed the appeal and set aside the orders passed under section 10B of the Act. The Tribunal held that the Deputy Commissioner (Executive), Trade Tax, Banda, had no jurisdiction to revise the agreement dated April 19, 2005 made under section 7D of the Act. The Tribunal held that dealers filed the copies of the agreement, which were available at the time of accepting the applications under section 7D of the Act and the dealers had not concealed any fact. The Tribunal held that the assessing authority had agreed for the payment of lump sum under section 7D of the Act on the consideration of the entire facts and circumstances of the case. Hence he was not justified to say that the dealers were not entitled for the benefit of the Compounding Scheme. Heard Sri B.K. Pandey, learned Standing Counsel and Shri Jamal Ali, learned counsel for the dealers. Learned Standing Counsel submitted that under section 7D of the Act the assessing authority could agree to accept the composition money subject to the directions of the State Government. Thus, the assessing authority could not accept the composition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order (other than an order mentioned in section 10A) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereto as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No order under sub-section (1), shall be passed (a) to revise an order, which is or has been the subject-matter of an appeal under section 9, or an order passed by the appellate authority under that section; Explanation. Where the appeal against any order is withdrawn or is dismissed for non-payment of fee payable under section 32 or for non-compliance of sub-section (1) of section 9, the order shall not be deemed to have been the subject-matter of an appeal under section 9; (b) before the expiration of sixty days from the date of the order in question; (c) after the expiration of four years from the date of the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and the quantification of tax liability is by agreement as per the term of the scheme which would bind both the parties. The object of introducing such a scheme under a taxing statute is well established as so many advantages are attached to such scheme besides being hassle-free to the dealer. It also avoids unnecessary litigation. The Department in its turn receives a fixed amount of tax without undertaking the assessment work and, thus, saves a lot of time. It also facilitates the speedy recovery of tax. Like section 7D of the Act similar provisions are also available under the Kerala General Sales Tax Act, 1963, Central Excise Act, 1944, U.P. Sugarcane (Purchase Tax) Act, 1961, etc. The apex court and the High Court had occasions to consider the scope of such provisions. In the case of State of Kerala v. Builders Association of India reported in [1997] 104 STC 134; [1997] 2 SCC 183 the apex court while considering the constitutional validity of sections 7(7) and 7(7A) and 5(1)(iv) of the Kerala General Sales Tax Act, 1963, which provided for payment of tax in lump sum in place of actual amount of tax, has held that the alternate method of taxation provided by sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f they have availed of the procedure under rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under section 3A(4) of the Act, which is specifically excluded. In the case of Jalan Castings (P) Ltd. v. Commissioner, Central Excise reported in [2000] 119 ELT 531 (All), this court has held that where an assessee has himself asked for a lump sum method of assessment and this was agreed to by the Department, then the assessee cannot go back and claim that he should be assessed by the normal mode as the assessee cannot blow hot and cold at the same time. The decision of this court has been approved by the apex court in the case of Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd. reported in [2000] 4 JT 77. The same view was taken by the apex court in the case of Union of India v. Supreme Steels and General Mills reported in [2001] 133 ELT 513. In the aforesaid case, it has been held by the apex court that it was absolutely optional for the manufacturer to opt for payment of excise duty in accordance with sub-rule (3) of rule 96ZO on the basis of total finished capacity installed as provided thereunder and the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast discomfort to the assessee. It is only a convenient mode of realisation of tax. It also ensures the fixed amount of payment of tax to the Government irrespective of the fact that the business of the assessee earned profit or not. Similar view has been taken by the apex court in the case of Mycon Construction Limited [2002] 127 STC 105; [2002] UPTC 585, Venus Castings (P) Ltd. [2000] 4 JT 77 and Union of India v. Supreme Steels and General Mills [2001] 133 ELT 513. In the case of Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of Airfreight Ltd. reported in [1996] 4 SCC 704, the apex court has held that when a person signs a document which contains certain contractual terms, normally parties are bound by such contract and it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed documents, it is for him to prove the terms in the contract or circumstances in which he came to sign the document, and in appropriate case where there is an acute dispute of facts, the Tribunal has to necessarily refer the parties to original civil court established under the Code of Civil Procedure or the State l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 2005 SCW 1561. In my view, the agreement under section 7D of the Act cannot be revised or altered under any of the provision of the U.P. Trade Tax Act except in a situation provided under the scheme. Clause (12) of the scheme provides that in case it is found that in the application or in the affidavit any fact has been concealed or wrong details have been furnished, the assessing authority would have power to cancel the agreement for the composition amount in lump sum. In the present case, there is no allegation that any fact has been concealed or wrong details have been furnished, inasmuch as no action has been taken under clause (12) of the scheme by the assessing authority. Learned Standing Counsel submitted that clause (3) of the scheme provides that in relation to the dispute of the civil contract, the decision of the Commissioner of Trade Tax shall be final. According to him under this clause, Joint Commissioner, who is included within the definition of Commissioner could exercise the power under section 10B of the Act. In my view, submission of the learned Standing Counsel is misplaced. Clause (13) of the scheme is applicable in a case where there is any dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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