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TMI Blog2010 (11) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary, that there was some dispute with respect to the installed unit/capacity of the petitioners-industry or the capacity entered into in terms of the Scheme itself, he was to refer the matter itself to the Commissioner, who would have taken necessary steps for adjudicating upon the aforesaid limited issue but he could not have power to assess the amount under the Scheme on a different capacity. Thus we are of the view that the assessment orders passed in both the writ petitions as well as the appellate order cannot be sustained, which are hereby set aside.The matter is remitted to the assessing officer, who shall forward it to the Joint Commissioner (Executive), who will make an enquiry in the matter and shall submit his report to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 8770 (MB) of 2009, has been dismissed as being not maintainable after observing that in a matter of dispute regarding the claim of benefit of the scheme floated under section 7D of the Act (Compounding Scheme), the competent authority is the Commissioner, Trade Tax and no other authority including the appellate authority; therefore, the petitioner has not filed any appeal against the present assessment order in writ petition No. 4346 (MB) of 2010, but has approached this court under article 226 of the Constitution. In earlier writ petition an interim order of stay was passed on September 9, 2009 by a Division Bench of this court taking into consideration the aforesaid plea that under the Scheme it is only the Joint Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,51,563 More than 40 inch More than 100 per cent and up to 120 per cent ₹ 4,49,220 The above chart gave the length of roller body, its installed capacity and the amount of tax which has to be deposited by such manufacturing unit for taking the benefit of compounding scheme. It mentioned that for rollers of 40 inches length to the extent of installed capacity of 100 per cent, the compounding tax would be ₹ 2,92,970. In paragraph 2 of the scheme, it has been provided that the application, which was to be furnished for accepting the compounding scheme within a given time, must clearly indicate the pisai/production as against the installed capacity for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of compounding scheme and held that the petitioner had claimed that he was operating only four atta chakkees, whereas he was having installed capacity of six roller bodies. After recording such a finding the assessing officer observed that in view of the scheme framed under section 7D of the Act, the petitioner was to make the payment of compounding tax on the basis of the installed capacity, i.e., six roller bodies of 40 inches size, whereas the petitioner has deposited the tax for only one roller body, i.e., ₹ 2,92,970 as against the total tax of ₹ 13,18,368. Arguments have been advanced from both the sides with respect to the interpretation of the Scheme, whether the compounding amount has to be paid on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompounding money in lumpsum, in lieu of tax payable, it displaces the regular assessment proceeding. Clause 15 of the electrical compounding scheme, which has been annexed as CA-4 to the counter-affidavit states that in case if it is found that in the application/affidavit any fact has been concealed or any wrong details have been furnished, Commissioner of Trade Tax will have a right to cancel the agreement for the lumpsum payment and direct for the regular assessment. . . In the case of Kothari Contract Interiors v. Trade Tax Officer, Modinagar, Ghaziabad reported in [2007] 10 VST 60 (All); [2006] UPTC 74, the Division Bench of this court took notice of the judgment passed in the case of Sri Durga Brick Field v. State of U. P. reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accepted cannot 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. Learned counsel for the petitioner submits that the case of Sri Durga Brick Field [1991] UPTC 510, was a case where it appears that the dealer had agreed for payment of lump sum tax but thereafter he came forward with the plea that after the agreement having been entered into, the dealer he did not make an attempt to pay the lumpsum amount of tax as agreed upon on the ground that the mill was lying closed or the unit did not work, whereas in the instant case, the petitioner in his application had made it clear that he was not running four roller bodies for the entire financial year. We do not i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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