JUDGMENT Rajes Kumar, J.
1. Petitioner is a contractor and had been awarded a contract by M/s RAVE Entertainment Private Limited, Kanpur for electrification in RAVE 3, which was executed during the assessment year 2001-02. According to the petitioner. Contract was a composite contract for electrification in the multiplex, which included the supply and installation of goods for electrification. petitioner is a registered dealer under the U.P. Trade Tax Act, Petitioner is liable to tax under Section 3-F of the Act on the value of the goods involved in the execution of she works contract.
2. The State Government in exercise of powers under Section 7-D of the U.P. Trade Tax Act (hereinafter referred to as Act") issued a compounding Scheme for the electrical nature of contract for the payment of compounding fee in lump sum in lieu of tax payable. The petitioner moved an application under compounding scheme, for the aforesaid contract with the concerned authorities alongwith cop of the contract dated 13.03 2001. Deputy Commissioner '(Assessment)-14. Trade Tax, Kanpur accepted the compounding application on, 28.02.2003. 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 Rs.77.48.650 on which a sum of Rs.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 earlier notice. the petitioner filed a certificate of the contracted, M/s RAVE Entertainment Private Limited, Kanpur. in which it was stated that the alleged TV Telephone Network has been done by some other party but in the notice it is alleged that from the certificate if is not clear that the petitioner had not carried on the work and by which it was carried on. It has also been alleged that under the agreement the payment has been received by the petitioner. The petitioner field the present writ petition challenging the notice issued under Section 7-D of the Act and the notice issued under Section 21 of the Act. This court has asked the learned Standing Counsel to file the counter affidavit vide order dated 20.09.2004. Counter affidavit ahs been filed annexing the copy of the order 29.09.2004 passed under Section 7-D of the Act by which earlier order dated 28.02.2003 has been cancelled and order passed under Section 21 of the Act by which the tax has been imposed on the turn over of Rs. 69,80,000/- @ 10%. Petitioner filed rejoinder affidavit to the counter affidavit and also filed amendment application challenging the aforesaid two orders, annexed along with counter affidavit. The amendment application has been allowed vide order dated 25.04.2005 and the petitioner was permitted to incorporate the amendment. In this view of the matter, in the present writ petition the notice under Section 7-D and notice under Section 21 of the Act and the subsequent order dated 29.09.2004 passed under Section 7-D of the Act and assessment orders dated 30.09.2004 passed under Section 21 of the Act have been challenged.
4. Heard Sri Ashok Kumar, learned counsel for the petitioner and Sri M.R. Jaiswal, learned Standing Counsel.
5. The contention of the petitioner is that alongwith application under Section 7-D of the Act, petitioner has filed a copy of the agreement and after examining the nature of the contract mentioned in the agreement and after having satisfied that the nature of the contract falls under the compounding scheme accepted the application under the compounding scheme. He submitted that the nature of contract was the electrical nature and the inference of the respondents that some of the work relating to the TV/Telephone Network had been carried on, which was not in the nature of electrical 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 can not 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 can not be said that there was any concealment of fact or misrepresentation on the part of the petitioner He submitted that the order dated 29.09.2004 under Section 7-D of the Act cancelling the agreement order dated 28.02.2003 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, Modinagar, reported in 1999 STD, 59 and in the case of Ram Prakash Vijai Kumar Pvt. Ltd., Saharanpur v. Deputy Commissioner (Executive), Sales Tax, Saharanpur, reported in 1996 UPTC, 998. He further submitted that clause 15 of the compounding scheme, which is annexed as annexure CA-4. the power to cancel the agreement under the compounding scheme is only with the Commissioner of Trade Tax and not with the Deputy Commissioner (Assessment). Thus, the order passed under Section 7-D of the Act cancelling the earlier order dated 28.02.2003 is without jurisdiction, He further submitted that once application under the compounding scheme is accepted under Section 7-D of the Act. No assessment can be made in respect of the amount received for the execution of the contract, and no notice under Section 21 of the Act can be issued. In support of the contention he relied upon the decision of this Court in the Kothari Contract Interiors v. TTO, Modinagar, reported in 2005 NTN (26), 427.
6. In reply to the submissions made by learned counsel for the petitioner. learned Standing Counsel submitted that present is the case of concealment of facts and. misrepresentation. He submitted that the petitioner has misrepresented the authority concerned and has not disclosed the correct nature of the contract which was not m electrical contract and was not covered under the electrical contract compounding scheme. He submitted that the some of the contract under the agreement was in the nature of electrical contract, namely. TV/Telephone Network and was not covered under the compounding scheme and, therefore, the petitioner was not entitled for the benefit of provisions of Section 7-D of the Act and the respondent has rightly cancelled the order dated 28.02.2003. He submitted that once the order dated 28.02.2003 has been cancelled, the petitioner was out of compounding scheme and was liable to be taxed under the regular assessment either under Section 7 of the Act or under Section 21 of the Act and, therefore, proceedings under Section 21 of the Act was rightly initiated and the tax has been rightly assessed under Section 21 of the Act. Learned Standing Counsel further submitted that if there is mistake of fact in the agreement, such agreement becomes void and can not be looked into. In support of his contention he relied on the decision of Apex Court in the case of Sri Tarsem Singh v. Sri Sukhminder Singh, reported in JT 1998 (2) SC 149. He further submitted that since order dated 28.02.2003 was passed by Deputy Commissioner (Assessment) he had power to review its order.
7. We have heard learned counsel for the parties and have given anxious consideration to the rival submissions.
8. Section 7-D of the Act reads as follows:
"Notwithstanding anything contained in this Act. but subject to directions of the Shite 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 am 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 this 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-II posted at a checkpost."
9. Section 7-D of the Act starts with obstance clause. i.e. "notwithstanding" anything contained in the Act." Thus it has a overriding effect over the provision of the Act. Perusal of section shows that it contemplates payment by agreement in lump sum. Once the department agrees to accept the tax in the name of compounding money in lump sum. in lieu of tax payable, it displaces the regular assessment proceeding. Clause 15 of the electrical compounding scheme, which has annexed as 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 lump sum payment and direct for the regular assessment. Apart from this scheme no other compounding scheme has been placed before us. The aforesaid clause 15 of the compounding scheme shows that the power has been given only to Commissioner of Trade Tax to cancel the agreement in case if it is found that in the application or in the affidavit any fact has been concealed or any wrong details have been furnished. In the present case, notice under Section 7-D of the Act for the cancellation, of the earlier order passed under Section 7-D of the Act has been given by the assessing authority and thereafter, impugned order dated 29.09.2004 has been passed by Deputy Commissioner (Assessment). Range-14, Trade Tax, Kanpur and not by the Commissioner of Trade Tax. Under Section 2 (b) of the Act Commissioner is defined. which does not include Deputy Commissioner. Therefore, the order passed by Deputy Commissioner (Assessment) is without jurisdiction. Perusal of the nonce under Section 7-D of the Act shows that no allegation has been made that the fact has been concealed or any incorrect detail has been furnished. The only allegation in the notice is that some of the work, in the agreement was not in the nature of electrical and was of TV/Telephone Network.
10. We are of the opinion that present is not the case of the cancealment of the facts or misrepresentation or furnishing of any wrong details on the part of the petitioner. Perusal of the order dated 28.02.2003 clearly shows that alongwith compounding scheme application under Section 7-D of the Act, petitioner had filed a copy of the agreement dated 13.03.2001. The said agreement was duly examined by the authority concerned, in which me nature of contract: 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 with application under Section 7-D of the Act, It is also not the case that wrong have been furnished. If the authority concerned has drawn wrong inferences 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 can not 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.
11. The argument of learned Standing Counsel that order dated 28.02.2003 was passed by Deputy Commissioner (Assessment) Range-15, Trade Tax Kanpur and therefore, he had power to review its order can not be accepted. It is settled principle of law that power to review the order can not be exercised unless it is specifically contemplated in the Act or scheme. No such power has been given to the Deputy Commissioner (Assessment) under the Act or under the scheme. The power under the scheme is given only to the Commissioner of Trade Tax on a specific condition being present namely, in case if, in the application or in the affidavit it the fact is concealed or wrong fact has been given. Argument of learned Standing Counsel that if there is mistake of fact under the agreement agreement becomes void is misconceived and is not relevant to the present case. In the present case no case has been made out that a wrong details or particulars were furnished which resulted the acceptance of the compounding scheme. Present is the case of drawing inference on the fact stated. It is not the case of disclosure of wrong fact or a case mistake of fact. In this view of the matter the decision, of the Apex Court in the case of Sri Tarsem Singh v. Sri Sukhminder Singh, reported in TV 1998 (2) SC 149 is not applicable.
12. In the case of Kothari Contract Interiors v. Trade Tax Officer, Modinagar, reported in 1999 STD, 59 and in the case of Ram Prakash Vijai Kumar Pvt. Ltd., Saharanpur v. Deputy Commissioner (Executive), Sales Tax. Saharanpur, reported in 1996 UPTC, 998, it has been held by the Division Bench of this Court that Deputy Commissioner (Executive) can not review its order unless any concealment of fact misrepresentation or any suppressed information was found. In these circumstances, we are of the view that the order dated 29.09.2004 passed under Section 7-D of the Act by which earlier order dated 28.02.2003 passed under Section 7-D of the Act has been cancelled is liable to be quashed.
13. In the case of Kothari Contract Interiors v. TTO, Modinagar, reported in 2005 STN (26), 427 Division Bench of this Court has held that sect Section 7-D of the Act has overriding, effect over other provision of toe Act and once the compounding application is accepted under Section 7-D of the Act, proceeding under Section 21 of the Act can not be taken Following the aforesaid decision of this Court order passed under Section 24 of the Act dated 30.09.2004 is also not sustainable and liable to be quashed. The notice under Section 21 of the Act and in pursuance thereof order under Section 21 of the Act are also not sustainable on the around that the notice under Section 21 of the Act was issued on 19.03.2004 when the order under Section 7-D of the Act dated 28.02.2003 was in existence and no jurisdiction to make assessment could be assumed.
14. In the result writ petition is allowed. Orders dated 29.09.2004 passed under Section 7-D of the Act and dated 30.09. 2004 passed under Section 21 of the Act arc quashed.