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TMI Blog2005 (5) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... g scheme for the aforesaid contract with the concerned authorities alongwith copy of the contract dated 13th March, 200 1. Deputy Commissioner (Assessment)-14, Trade Tax, Kanpur accepted the compounding application on 28th February, 2002. In the order it has been stated that the application was moved alongwith the copy of the contract and the total payment received during the year under consideration was ₹ 77,48,650 on which a sum of ₹ 3,37,292 was deducted as TDS. It has been observed that the application fall within the electrical contract compounding scheme and thus after the enquiry/examination it is accepted. 3. The Deputy Commissioner (Assessment)- 14, Trade Tax. Kanpur issued notice under Section 21 for the Assessment Year 2001 - 02 and also issued notice under Section 7-D of the U.P. Trade Tax Act for the cancellation of the order/agreement under Section 7-D of the Act. In the notice it was alleged that on the perusal of the agreement it was found that apart from the execution of electrical contract, they have also executed a contract for TV/Telephone network, which does not fall under the electric contract compounding scheme. It appears that in reply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectrical contract and does not fall under the compounding scheme is without any basis. He submitted that some of the work of the contract may not be individual electrical contract but if the totality of the contract is to be seen it is a electrical contract covered under the compounding scheme. He further submitted that once the application is accepted, it cannot be cancelled unless a case of misrepresentation or concealment of fact is made out. He submitted that copy of the agreement was filed alongwith application and it was accepted after examination of the nature of the contract mentioned in the agreement, thus it cannot be said that there was any concealment of fact or misrepresentation on the part of the petitioner. He submitted that the order dated 29th September, 2004 under Section 7-D of the Act cancelling the agreement/order dated 23th February, 2003 passed by under Section 7-D of the Act is erroneous. In support of his submission he relied upon the decision of this Court in the case of Kothari Contract Interiors v. Trade Tax Officer Nodinagar, reported in 1999 S.T.D. 59 and in the case of M/s. Ram Prakash Vijai Kumar Pvt. Ltd., Saharanpur v. Deputy Commissioner (Executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that since order dated 28th February, 2003 was passed by Deputy Commissioner (Assessment) he had power to review its order. 8. We have heard learned Counsel for the parties and have given anxious consideration to the rival submissions. 9. Section 7-D of the Act reads as follows: notwithstanding anything contained in this Act, but subject to directions of the State Government the Assessing Authority may agree to accept a composition money either in lump sum or at an agreed rate on his turnover in lieu of tax that may be payable by a dealer in respect of such goods or class of goods and for such period as may be agreed upon: Provided that any change in the rate of tax which may come into force after the date of such agreement shall have the effect of making a proportionate change in the lump sum or the rate agreed upon in relation to that part of the period of assessment during which the changed rate remains in force. Explanation. - For the purposes of this section the Assessing Authority includes an officer not below the rank of Trade Tax Officer Grade-11 posted at a checkpost. 10. Section 7-D of the Act starts with obstance clause, i.e. notwithstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract was mentioned for which payment of tax was sought under the compounding scheme. Thus, it is not the case where the nature of contract has not been informed or disclosed for the consideration alongwith application under Section 7-D of the Act. It is also not the case that wrong details have been furnished. If the authority concerned has drawn wrong inferences and committed a mistake in treating the said contract as electrical contract within the ambit of compounding scheme, it is a mistake on the part of officer concerned and it cannot be said that the any fact with regard to the nature of the contract has been concealed or misrepresentation has been made or any wrong details have been furnished by the petitioner. It is made clear at this stage that we have not adjudicated on merit as whether the contract in dispute is a electrical contract or not. 12. The argument of learned Standing Counsel that order dated 28th February, 2003 was passed by Deputy Commissioner (Assessment) Range-15, Trade Tax, Kanpur and, therefore, he had power to review its order cannot be accepted. It is settled principle of law that power to review the order cannot be exercised unless it is specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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