R.K. Agrawal, J.
1. Disagreeing and also doubting the correctness of the law laid down by a co-ordinate Bench of this Court in the case of M/s Jaya Bhatta Udyog v. State of U.P. (Civil Misc. Writ Petition No. 858 of 1990, decided on 17.7.1990), followed subsequently by two Division Benches in the case of M/s Sri Durga Brick Field v. State of U.P. 1991 UPTC 510, and Jai Sharma Int Udyog v. Deputy Collector (Collection), Sales Tax (1999) 116 STC 357, wherein this Court has held that once a person elects to pay the sales tax in lump sum under the scheme announced under Section 7-D of the U.P. Sales Tax Act, 1948 (hereinafter referred to as 'the Act'), he could not be permitted to turn around and contend that he was not liable to pay the amount, agreed to be paid by him, because his turnover turned out to be either nil or that it was not adequate on account of various factors, a Division Bench had referred the matter to be considered by a larger Bench of this Court, The Full Bench has, therefore, been constituted to reconsider the correctness of the aforesaid judgments rendered by me Division Bench.
2. While referring the matter for reconsideration by the larger Bench, the Division Bench has expressed its disagreement in the following words :-
We have carefully perused the above decisions and we are in respectful disagreement with the same. In the aforesaid decisions it has been held that once the petitioner has opted for composition scheme he has to pay Trade Tax even if he has not made any sales. In our opinion sales tax (now known as Trade Tax) is payable when there is a sale. When there is no sale we cannot understand how sales tax (Trade Tax) can be charged.
It may be mentioned that Section 7-D mentions that 'assessing authority may agree to accept the composition money either in lump sum or at an agreed rate on the dealers turnover in lieu of tax that may be payable by a dealer in respect of such goods or class of goods....
Thus Section 7-D is only a convenient mode of realization of Trade Tax and it has been made so that the dealer may not be harassed to go to the Trade Tax office again and again. Thus Section 7-D provides for convenient alternative mode of realization of Trade Tax.
The word turnover has been defined in Section 2(i) of the U.P. Trade Tax Act as follows:-
'turnover' means the aggregate amount for which goods are supplied or distributed by way of sale or are sold, by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration.
Thus the turnover is only payable when there are sales and when there are no sales there is no question of any turnover. Hence also in our opinion no Trade Tax can be demanded or realised from a dealer when he has not made any manufacture or sale.
It may be mentioned that as far back in State of Madras v. Cannon Dunkerley : [1959]1SCR379 , it was held that to levy sales tax there must be a sale as defined in the Sales of Goods Act. No doubt this definition of sale both in the Constitution and Sales Tax Act has been changed and now it includes works contract, agreement to use, etc. but still there must be some transaction, and if there is no transaction obviously no sales tax can be levied.
Learned Standing Counsel relied on the decision of the Supreme Court in Commissioner, Central Excise v. M/s Venus Castings (P) Ltd. : 2000ECR9(SC) which has affirmed the Division Bench decision of this Court in M/s Jalan Castings (P) Ltd. v. Commissioner, Central Excise : 2000(119)ELT531(All) . The decision in Jalan Castings' case (supra) involved the controversy as to whether once having opted for the composition scheme a dealer can turn around and ask for a regular assessment, and it was held that he cannot. This controversy is totally different from that which is involved in the present case. In the present case the question is whether there can be demand of Trade Tax when there is no production or sale at all.
Facts of the case:
3. In the year 1993, the petitioner, M/s Bhadauria Gram Sewa Sansthan, Fatehpur. it is alleged, took over a brick kiln which was functioning in the name and style of Bhadauria Brick Field, for manufacturing bricks in the name and style of the petitioner. It applied for grant of registration with the sales tax department on 21.2.1993, The Sales Tax Officer, Fatehpur, vide order dated 21.3.1993, registered the petitioner society as a dealer under the Act with effect from 1.4.1993. The registration was effective for a period of three assessment years, i.e. 1993-94, 1994-95 and 1995-96. The Government of Uttar Pradesh announced a scheme, commonly known as Composition Scheme, under the provisions of Section 7-D of the Act under which an option was given to all brick kiln owners to either pay the tax assessed on their actual sales or purchase or to give an option to pay the tax in one lump sum. Under the said scheme, the brick season was from 1.10.1992 to 30.9.1993. The amount payable by the brick kiln owners who have opted under the said Scheme, was known as SAMADHAN DHANRASHI or the composition amount. It was fixed according to the capacity determined in terms of PAYA or columns. The petitioner's brick kiln had 19 PAYA. It opted for payment of tax under the composition scheme and deposited a sum of Rs. 8,600/- on 19.3.1993, being 20% of the total composition money. According to the petitioner, it could not run the brick kiln during the brick season 1992-93, i.e., from 1.10.1992 to 30.9.1993 and, therefore, informed the sales tax authorities to make survey and physical verification so that the petitioner may not be saddled with the liability for payment of the composition money. This information is alleged to have been given on 16.4.1993 to the Sales Tax Officer. Fatehpur, who surveyed the petitioner's brick kiln on 8.9.1993 and found that the chimney is broken and on the basis of the statements given by the local persons, came to the conclusion that in the first season of the Assessment Year 1993-94, no burning has been done in the brick kiln by the petitioner. The matter was referred to the Deputy Commissioner (Administration), Sales Tax, Allahabad who, vide order dated 23.12.1993. did not accept the plea of the petitioner that it is not liable to pay any amount towards the composition money on the ground that the brick kiln did not function as, according to the Deputy Commissioner, once an application has been submitted under Section 7-D of the Act exercising the option to pay the amount in lump sum, it cannot be withdrawn for any reason whatsoever. As the petitioner had failed to deposit the balance amount due under the composition scheme, the Sales Tax Officer, Fatehpur, vide notice dated 22.9.1993. directed the petitioner to deposit the balance amount of Rs. 34,400/- alongwith interest due thereon as also penalty of Rs. 2.000/.
Relief sought :
4. The demand of the balance amount of composition fee alongwith interest and penalty as also the order dated 23.12.1993 passed by the Deputy Commissioner (Administration), Sales Tax, Allahabad have been challenged by the petitioner in the present writ petition.
Provision of law :
5. Section 7-D of the Act runs as under :-
7-D. Composition of tax liability - 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 any 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 effect of making a proportionate change in the lump sum on 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 check post.
Law laid down in the cases referred for reconsideration :
M/s Java Bhatta Udyog's case :
6. In the case of M/s Jaya Bhatta Udyog, a Division Bench of this Court has held that Section 7-D of the Act is very clear. It enables the dealer to pay the sales tax in lump sum in lieu of the tax. For that purpose, the dealer executes an agreement undertaking to pay the sales tax in lump sum and the liability arising under such agreement is not related to actual turnover of the petitioner, The petitioner having elected to pay the sales tax in lump sum, could not be permitted to turn around and contend that he was not liable to pay the amount agreed to be paid by him because his turnover turned out to be either nil or that it was not adequate on account of various factors. This Court has further held that there is another reason why it is not persuaded to interfere. Clause 16 of the agreement specifically provided that it would not be open to the dealer to pay a reduced amount or to resile therefrom as that clause clearly contemplated that once a dealer agreed to pay the tax in lump sum, they cannot insist on payment of the tax on the basis of actual turnover and the dealer's rights are, in the opinion of the Court, regulated entirely by the terms of the agreement.
M/s Sri Durga Brick Field's case :
7. In the case of M/s Sri Durga Brick Field, another Division Bench of this Court has relied upon the opinion expressed in the case of M/s Jaya Bhatta Udyog.
Jai Sharma Int Udyog's case :
8. In the aforesaid case, a Division Bench of this Court was considering the question as to whether where a dealer has opted to pay the tax in terms of the Scheme under Section 7-D of the Act, can he be permitted to resile from the same subsequently for one reason or the other including that he had no turnover that could have been brought to tax. This Court has referred in extenso the law laid down in the case of M/s Java Bhatta Udyog (supra) and has held that the petitioner therein is not entitled to any relief from this Court.
9. As already mentioned hereinbefore, the Division Bench had disagreed with the aforesaid three Division Benches on the ground that the sales tax, now known as Trade Tax, is payable when there is a sale and when there is no sale, the court wondered as to how the sales tax (trade tax) could be charged. According to the Division Bench, Section 7-D is only a convenient mode of realisation of the sales tax and it has been made so that the dealer may not be harassed to go to the Trade Tax office again and again and the tax is only payable when there are sales and when there are no sales, there is no question of any turnover and, therefore, in its opinion, no Trade Tax can be demanded or realised from a dealer when he has not made any manufacture or sale. The Division Bench had distinguished the decision of the Apex Court in the case of M/s Venus Castings (supra) on the ground that the controversy involved therein as to whether once having opted for the composition scheme, a dealer can turn around and ask for a regular assessment, and it was held that he could not whereas, in the present case, the question is whether there can be demand of Trade Tax when there is no production or sale at all.
10. We have heard Sri Navin Sinha, learned Senior counsel, assisted by Sri R.K.S. Chauhan, on behalf of the petitioner, Sri S.M.A. Qazmi, learned Chief Standing Counsel, assisted by Sri K.M. Sahai and Sri S.P. Kesarwani, learned Standing Counsels, appearing for the respondents.
Rival Submissions :
11. Sri Navin Sinha, learned Senior Counsel, has submitted that, under Section 7-D of the Act, the amount to be paid is in lieu of the amount 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, Laying emphasis on the words 'in lieu of, he submitted that if there was no liability for payment of tax, as there was no production or sale during the relevant period, the petitioner cannot be saddled with the liability for payment of the amount agreed by it as the liability to pay the said amount was in place of the amount of tax payable on actual sales.
12. He further submitted that to levy the sales tax, there must be a sale as defined in the Sale of Goods Act and unless there are some transaction, and if there is no transaction, obviously no sales tax can be levied. He, thus, submitted that the decisions rendered in the case of M/s Jaya Bhatta Udyog, M/s Sri Durga Brick Field and Jai Sharma Int Udyog (supra) do not lay down the correct law! and require to be overruled. According to him, as the petitioner had not done any production and sale of bricks during the brick season 1992-93 (1.10.1992 to 30.9.1993), the petitioner was not liable to pay any tax and consequently, the composition money. In fact, it was entitled for the refund of Rs. 8,600/- deposited by it at the time of making the application. In support of his aforesaid submissions, he has relied upon the following decisions and dictionary:-
(i) Black's Law Dictionary, V Edition, page 708;
(ii) Hindustan Construction Co. Ltd. v. Income Tax Officer (Companies Circle) Bombay and Anr. (1965) 2 SCR 41;
(iii) State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. : [1959]1SCR379 .
13. Sri S.M.A. Qazmi, learned Chief Standing Counsel, submitted that under the terms of the Scheme, which was announced for the brick season 1992-93 (1.10.1992 to 30.9.1993), the petitioner had made the application. It had also deposited a sum of Rs. 8,600/- towards the first instalment while making the application. Referring to Clauses 7 and 19 of the said Scheme, he submitted that the petitioner cannot withdraw or resile once it had made the application exercising the option under Section 7-D of the Act and further, Clause 19 of the Scheme specifically provided that there would be no reduction in the composition money even if the brick kiln owner starts the firing late does not start the firing or does not do any business for any reason whatsoever. He further submitted that a writ petition is not an appropriate remedy for impeaching contractual obligation and it is not open to the petitioner to get over a contract by challenging some of the clauses of the contract as the petitioner had made the application with open eyes.
14. He further submitted that the method of taxation provided by Section 7-D of the Act is optional and the person who has opted the said alternate method of taxation, cannot be permitted to complain against the said provision. According to him, where two alternate procedures have been made available and an assessee has opted for one, it cannot claim the benefit for other. According to Sri Qazmi, once the petitioner had voluntarily made the application for payment of a lump sum amount in lieu of tax payable by it, it cannot resile or seek remission either in full or in particular or deny its liability for payment of the amount on any ground whatsoever, including the plea of non-production or no sale during the brick season. He, therefore, submitted that this Court in the case of M/s Jaya Bhatta Udyog which has been reiterated subsequently in the case of M/s Sri Durga Brick Field and Jai Shamra Int Udyog, has correctly laid down the law and it does not require any reconsideration. In support of his various pleas, he has relied upon the following decisions:-
(i) Har Shanker and Ors. v. The Deputy Excise and Taxation Commissioner and Ors. : [1975]3SCR254 ;
(ii) State of Orissa and Ors. v. Narain Prasad and Ors. : AIR1997SC1493 ;
(iii) Bharathi Knitting Co. v. DHL Worldwide Express Courier : AIR1996SC2508 ;
(iv) State of Kerala and Anr. v. Builders Association of India and Ors. : AIR1997SC3640 ;
(v) Commissioner, Central Excise v. Venus Castings (P) Ltd. : 2000ECR9(SC) ;
(vi) Union of India v. Supreme Steels and General Mills : 2000ECR193(SC) ;
(vii) Jalan Castings (P) Ltd. v. Commissioner, Central Excise : 2000(119)ELT531(All)
(viii) Satish Prakash Ajay Kumar v. Assistant Sugar Commissioner, Saharanpur and Ors. 1980 UPTC 64(FB);
(ix) M/s Jaya Bhatta Udyog v. State of U.P. (Civil Misc. Writ Petition No. 858 of 1990, decided on 17.7.1990);
(x) M/s Sri Durga Brick Field v. State of U.P. 1991 UPTC 510;
(xi) Jai Sharma Int Udyog v. Deputy Collector (Collection), Sales Tax (1999) 116 STC 357; and
(xii) M/s Mycon Construction Ltd. v. State of Karnataka and Anr. 2002 UPTC 585 (SC).
15. Sri Navin Sinha, learned Senior counsel, in reply, submitted that the agreement cannot go beyond the provisions of the Act. According to him, there cannot be any estoppel against a statute. In support of his submission, he has relied upon the following decisions :-
(i) Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla and Ors. : [1992]3SCR328 ;
(ii) Bengal Iron Corporation and Anr. v. Commercial Tax Officer and Ors. : 1993(66)ELT13(SC) ;
(iii) Inder Sain Mittal v. Housing Board, Haryana and Ors. : [2002]2SCR5 ; and
(iv) M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd. : AIR2004SC1344 .
Cases cited at the bar :
16. In the Black's Law Dictionary, V Edition, page 708, the following meaning has been given to the words in lieu of :-
in lieu of /in lyuw ev/, Instead of; in place of; in substitution of.
17. In the case of Hindustan Construction Co. Ltd., the Apex Court has referred to the meaning ascribed to the expression 'in lieu of' in the case of Stubbs v. Director of Public Prosecutions 24 QBD 577, wherein it was held that where a liability has to be discharged by A in lieu of B, there must be a binding obligation on B to do it, before A can be charged with it. Considering the provision of Section 49E of the Indian Income Tax Act, 1922, which provided for set off of the amount to be refunded in lieu of the payment of refund, the Apex Court has held that the expression 'in lieu of connotes that the payment is outstanding, i.e., there is a subsisting obligation on the Income Tax Officer to pay and if a claim of refund is barred by a final order, it cannot be said that there is a subsisting obligation to make the payment.
18. In the case of Gannon Dunkerley & Co. (Madras) Ltd. (supra), the Apex Court has held that the expression 'sale of goods' in Entry 48 is a nomen juris, the essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is entire and indivisible there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax oft the supply of the materials used in such contract treating it as a sale. Hence the provisions of the Madras General Sales Tax Act which impose a tax on such materials as if there is a sale of them are ultra vires.
19. In the cases of Har Shanker and Ors. and Narain Prasad and Ors. (supra), the Apex Court has held that the writ petition is not an appropriate remedy for impeaching contractual obligations voluntarily incurred.
20. In the case of Bharathi Knitting Co. (supra), 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, need to be established and in appropriate case where there is an acute dispute of facts, necessarily the Tribunal has to refer the parties to original Civil Court established under the Code of Civil Procedure or the State law, to have the claim decided between the parties but when there is a specific term in the contract, the parties are bound by the term in the contract.
21. In the case of Builders Association of India (supra), the Apex Court while considering the constitutional validity of Sections 7(7) and 7(7-A) 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-section (7) or (7-A) of Section 7 is optional. It is wholly at the choice or pleasure of the contractor and the contractor who has opted to the said alternate method of taxation, cannot complain. It has further held that having voluntarily and within the full knowledge of the features of the alternate method of taxation, opted to be governed by it, a contractor cannot be heard to question the validity of the relevant Sub-sections or the Rules. The impugned Sub-sections have been evolved for convenient, hassle free method of assessment of tax, just as the system of levy of entertainment tax on the gross collection capacity of the cinema theatre and by opting to this alternate method, the contractor saves himself the botheration of book keeping, assessment, appeals and all that it means. It has also held that it is not necessary to enquire and determine the extent or value of goods which have been transferred in the course of execution of a works contract, the rate applicable to them and so on. It is only an alternative method of ascertaining the tax payable which may be availed of by a contractor if he thinks it advantageous to him. The Constitution does not preclude the Legislature from evolving such alternate, simplified and hassle free method of assessment of tax payable making it optional for the assessee.
22. Similar view has been taken by the Apex Court in the case, of M/s Mycon Construction Ltd. (supra). The Apex Court has repelled the submission that while evolving a simplified method of payment of tax such is the case in the instant case, the law cannot give an option to the assessee which is in the teeth of constitutional provision. It has held that this argument does not survive in view of the principles laid down by the Apex Court in the case of Builders Association of India (supra).
23. In the case of M/s Venus Castings (P) Ltd. (supra), the Apex Court while considering the provision of Section 3A(4) of the Central excise Act, 1944 and Rule 96ZO(3) of the Central Excise Rules, which envisaged the composition method of payment of duty, has held that they provided two alternative procedure to be adopted at the option of the assessee and they do not clash with each other. The manufacture if 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.
24. In the case of Jalan Castings (P) Ltd. (supra), 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 Venus Castings (P) Ltd. (supra).
25. The same view was taken by the Apex Court in the case of Supreme Steels and General Mills (supra). 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 manufacturer cannot opt twice during one financial year first choosing to pay in accordance with Sub-rule (3) of Rule 96ZO and thereafter to switch over to actual production basis Under Section 3A(4) of the Central Excise Act, 1944 in case it is less than the duty payable Under Sub-rule (3) of Rule 96ZO. The said sub-rule is quite clear that the option under it is available subject to the condition that once having opted it, the benefit, if any, under Sub-section (4) of Section 3A of the Central Excise Act, 1944 shall not be available.
26. In the case of Satish Prakash Ajay Kumar (supra), a Full Bench of this Court while interpreting the provisions of Section 3(1)(b) of the U.P. Sugarcane Purchase Tax Act, 1961 and Rule 13 of the Rules framed thereunder, has held that the said Act and the Rules do not contemplate exemption from the liability for payment of tax by the owner of a unit who has opted for the assumed basis merely because he has either by choice or on account of some mechanical defect, been unable to work some of the crushers composing his unit for any length of time during a particular assessment year.
27. The decisions of this Court in the cases of M/s Jaya Bhatta Udyog, M/s Sri Durga Brick Field and Jai Sharma Int Udyog (supra), relied upon by the State respondent, have already been dealt with under the heading Law laid down in the cases referred for reconsideration and are not being discussed again.
28. In the case of Ahmedabad Urban Development Authority (supra), the Apex Court has held that in the absence of an express provision, a delegated authority cannot impose tax or fee and the delegated authority must act strictly within the parameters of the authority delegated to it. under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental or ancillary power in the matter of exercise of fiscal powers.
29. In the cases of Bengal Iron Corporation, Under Sain Mittal and M.D. Army Welfare Housing Organisation (supra), the Apex Court has held that there can be no estoppel against the statute.
Discussion :
30. Having given our anxious considerations to the various submissions made by the learned Counsel for the parties, we find that Section 7-D which provides for composition of tax liability, starts with a non-obstante clause. A plain reading of Section 7-D of the Act shows that an option has been given to a dealer who is covered by a scheme issued by the State Government from time to time to opt for payment of lump sum amount in lieu of the amount of tax. It excludes the applicability of other provisions of the Act which deals with the assessment and payment of tax. A non-obstante clause, as observed by the Apex Court in the case of State of Bihar v. Bihar M.S.K.K. Mahasangh and Ors. AIR 2005 SC 1605, is generally appended to a section with a view to give the enacting part of the section, in case of a conflict, an overriding effect over the provision in the same or other Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. The payment of compounded tax is a convenient, hassle free and a simple method of assessment. A dealer who has opted for payment of lump sum amount in lieu of tax, is not required to file monthly or quarterly return of its turnover. It has to pay a fixed sum of money as tax as agreed upon by the department. It is the choice of a dealer to opt for compounded payment of tax and if the said choice is in accordance with the scheme and is ultimately accepted by the authority concerned, it becomes an agreed amount of tax. The department as also the dealer are bound by the said agreement. A dealer who has opted to pay the tax in lump sum under Section 7-D of the Act after it has been accepted by the department, any demand for that period is not relatable to the actual turnover but the sum agreed upon. In other words, the department as well as the dealer both know the amount payable and receivable by each other. The determination of lump sum amount in lieu of tax displaces the requirement of regular assessment proceeding 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.
31. In the case of Venkateshwara Theatre v. State of Andhra Pradesh : AIR1993SC1947 , the Apex Court while considering the scheme announced by the Government of Andhra Pradesh, providing that instead of payment of entertainment tax on the basis of actual number of cinema goers, the proprietor of a cinema hall may opt to pay a consolidated levy on the basis of gross collection capacity per show, has held that the compound payment of entertainment tax is a more convenient mode of levy of the tax inasmuch as it dispenses with the need of verification or to enquire into the number of person admitted to each show and to verify the correctness or otherwise of the returns submitted by the proprietor containing the number of. persons admitted to each show and the amount of tax collected. The aforesaid decision has been followed by the Apex Court in the case of Builders Association of India (supra) wherein the Apex Court has held that the object of levy of compound payment of tax is not to increase the revenue. The legislature provides the alternate method of taxation with a view to realise the tax with least 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 M/s Mycon Construction Ltd., M/s Venus Castngs (P) Ltd. and Supreme Steels and General Mills (supra).
32. A Full Bench of this Court in the case of Satish Prakash Ajai Kumar (supra) while considering the provision of Section 3(1)(b) of the U.P. Sugarcane Purchase Tax Act, 1961 and Rule 13 of the Rules framed thereunder, has held that they do not contemplate any exemption from the liability for payment of tax by the owner of a unit who has opted for payment of tax on assumed basis merely because he has, by chance or on account of some mechanical defect, been unable to work some of the crushers in his unit.
33. Clause 19 of the scheme under which the petitioner had applied for composition, specifically provided that if the firing is started late or is not commenced or, for any other reason, the amount of composition money would neither be reduced nor changed. Thus, from the provision of Section 7-D of the Act as also the scheme announced thereunder, we are of the considered opinion that the liability for payment of tax is dependent upon the agreement entered into by the parties and the amount so agreed would continue to be payable by the dealer notwithstanding the fact that the dealer has neither manufactured nor sold any bricks during the period for which it had opted for the composition under Section 7-D of the Act.
34. The amount payable under the composition scheme is not relatable to any actual turnover but depends upon the agreement under the scheme at the option of the dealer. The dealer having once exercised its option, cannot, therefore, be permitted to turn around and resile from its liability merely on the ground that of had had no turnover or had not done any manufacturing activity during the relevant year.
35. So far as the decisions and the dictionary meaning of the words 'in lieu of relied upon by Sri Navin Sinha, learned Senior Counsel, are concerned, we may mention that it is of no help to the petitioner inasmuch as here the amount of tax is being demanded in terms of the composition scheme which the petitioner had opted.
36. There cannot be any dispute that there cannot be any estoppel against a statute. However, where the demand is being made underline terms of the contract which specifically provides that there would be no reduction or change in the composition money even if the firing has not been done in brick kiln or it has been started late or for any other reason, the petitioner is bound, by the said clause and he cannot be permitted to challenge the same in view of the law laid down by the Apex Court in the case of Har Shanker and others, Narain Prasad and others and Bharathi Knitting Co. (supra). As we have already come to the conclusion that the liability to pay the composition money is not relatable to actual sales at all, the principle laid down by the Apex Court in the case of Gannon Dunkerley & Co. (Madras) Ltd. (supra) will not be attracted.
Conclusion:
37. In view of the foregoing discussions, we are of the considered opinion that the Division Bench in the case of M/s Jaya Bhatta Udyog (supra) subsequently followed by other Division Benches in the case of M/s Sri Durga Brick Field and Jai Sharma Int Udyog (supra) lay down the correct law.
38. Let the matter be placed before the appropriate Bench for further orders.