THE COMMISSIONER, TRADE TAX Vs. QAYUM KHAN THEKEDAR

JUDGEMENT

(1.) THESE four revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 24th February, 2006. Trade Tax Revision Nos. 810, 811 and 682 of 2006 relates to the assessment year 2003 -04 and Trade Tax Revision No. 812 of 2006 relates to the assessment year 2002 -03. Since the common question of law are involved in all the four revisions, same are being disposed of by the common order.

(2.) BRIEF facts of the case are that all the four opposite parties (hereinafter referred to as "Dealers") were civil contractors. They have been awarded several contracts of civil nature by the various Government departments in the years under consideration. The nature of the contracts are admittedly the works contract of civil nature. Dealers were liable to tax on the value of the goods involved in the execution of works contracts under Section 3 -F of the Act. All the dealers applied under the compounding scheme, introduced by the State Government under Section 7 -D 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 @ 1% under Section 8 -D of the Act. Under the compounding scheme, dealers were liable to tax 0 1% on the total payment received in respect of civil contracts. Assessing authority vide order dated 17th March. 2004 allowed the applications under Section 8 -D of the Act and passed the orders dated 17th March, 2004 for the deduction of tax @ 4%. It has been observed that the order passed under Section 8 -D (1) of the Act will have no effect on the application under Section 7 -D of the Act. It appears that alongwith 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 7 -D of the Act, inasmuch as the same is on record. During the course of the proceedings under Section 7 -D of the Act. dealers had filed the complete details of the payment received from the various Government departments in respect of the each contract. Assessing authority on 19th April, 2005 had agreed to accept the tax in lump sum @ 1% on the payments received from the various contracts disclosed by the dealers under Section 7 -D of the Act and had also observed that there would be no need to levy any tax under Section 7 of the Act. For the assessment years under consideration, the following amounts have been accepted as tax in lump sum under Section 7 -D of the Act in the case of all the four dealers:

(3.) BEFORE the Deputy Commissioner (Executive) dealers contended that once the assessing authority had accepted the application under Section 7 -D of the Act for the payment of tax in lump sum, same could not be reopened. It was submitted that under Section 7 -D of the Act, assessing authority entered into an agreement with the applicant to accept the tax in lump sum, thus, the document was in the nature of the agreement and not the order. Therefore, the provisions of Section 10 -B of the Act was not applicable. It was also, contended that the agreement could not be revised by the Deputy Commissioner (Executive). Deputy Commissioner (Executive) did not accept the plea of the dealers and vide order dated 09.09.2005 set aside the so -called orders dated 19.04.2005 passed under Section 7 -D of the Act and remanded back the matter to the assessing authority for fresh orders. Being aggrieved by the order under Section 10 -B of the Act, dealer filed appeals before the Tribunal. Tribunal by the impugned order allowed the appeal and set aside the orders passed under Section 10 -B of the Act. Tribunal held that the Deputy Commissioner (Executive), Trade Tax, Banda had no jurisdiction to revise the agreement dated 19.04.2005 made under Section 7 -D of the Act. Tribunal held that dealers filed the copies of the agreement, which were available at the time of accepting the applications under Section 7 -D of the Act and the dealers had not concealed any fact. Tribunal held that the assessing authority had agreed for the payment of lump sum under Section 7 -D of the Act on the consideration of the entire facts and circumstances of the case, hence was not justified to say that the dealers were not entitled for the benefit of the compounding scheme.