JUDGMENT R. K. GULATI, J. - The petitioner has sought a writ of mandamus directing the respondents not to recover any tax from the petitioner for the period October l, 1988 to September 30, 1989 inasmuch as the petitioner alleges that he could not operate his brick-kiln nor he had made any sales during the said period. The petitioner is manufacturer of bricks. He had opted to pay sales tax in lump sum in terms of the scheme that was framed under section 7-D of U.P. Sales Tax Act, 1948 (for short, "the Act"). Section 7-D of the Act, inter alia, provides as under : "Notwithstanding anything contained in other provisions of this Act, but subject to such directions as the State Government may from time to time issue in that behalf, the Commissioner of Sales Tax may agree to accept a lump sum 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 : Provided. ...." It is not in dispute that the petitioner had moved an application for payment of tax in lump sum for the period October 1, 1988 to September 30, 1989 in terms of the scheme conceived under section 7-D of the Act. Thereafter, according to the petitioner he had moved an application dated January 25, 1989 before Sales Tax Officer, Sector - II, Allahabad to the effect that his application may be treated as withdrawn. The request of the petitioner was, however, turned down on the ground that there was no provision under the scheme which permitted withdrawal of the application having once been made. The petitioner was informed accordingly. It is in this background that the petitioner has filed this writ petition challenging the recovery of the amount that is being realised from him and which he had opted to pay under the composition scheme. The question that falls for consideration is where a dealer has opted to pay tax in terms of the scheme under section 7-D of the Act, whether he could resile from the same subsequently for one reason or the other including that he had no turnover that could have been brought to tax. The question that falls for consideration is where a dealer has opted to pay tax in terms of the scheme under section 7-D of the Act, whether he could resile from the same subsequently for one reason or the other including that he had no turnover that could have been brought to tax. In Writ Petition No. 858 of 1990, M/s. Jaya Bhatta Udyog, Hazratpur, Khurja, Bulandshahr v. State of U.P. decided on July 17, 1990, a Division Bench of this Court had an occasion to consider a somewhat similar question. The court held as under : "We are unable to agree. Section 7-D of U.P. Sales Tax Act is very clear. It enables the dealer to pay sales tax in a lump sum in lieu of the tax. For that purpose the sales tax in a lump sum. In our view, the liability arising under such an agreement is not related to the actual turnover of the petitioner. The petitioner having elected to pay the sales tax in a lump sum could not be permitted to turn round 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. There is another reason why we are not persuaded to interfere. Clause 16 of the agreement specifically provides that it will not be open to the dealer to pay a reduced amount or to resile therefrom. This clause clearly contemplates that once the dealers agree to pay the tax in a lump sum, they cannot insist on payment of the tax on the basis of actual turnover. The dealers' rights are in our opinion regulated entirely by the terms of the agreement." In view of the above decision, the petitioner is not entitled to any relief from this Court. However, learned counsel for the petitioner contended that the offer that was sent by the petitioner to pay the tax in lump sum was not binding on him because the same was not accepted in time. We cannot accept the submission for more than one reason. The contention raised is essentially one of fact and it was never raised earlier at any stage before the appropriate authority. We cannot accept the submission for more than one reason. The contention raised is essentially one of fact and it was never raised earlier at any stage before the appropriate authority. Again the question whether an enforceable contract between the parties had come into existence or not, cannot be appropriately decided in these proceedings. The petitioner, if so advised, may seek redress before the Commissioner of Sales Tax, U.P., Lucknow or before such other forum as he may deem fit. However, if the petitioner makes any such representation before the Commissioner of Sales Tax, U.P., Lucknow, the same shall be decided in accordance with law. Subject to the above, the writ petition is dismissed. There shall be no order as to costs. Writ petition dismissed. Rangarajan Venkataswami, J. STATE OF TAMIL NADU v. S. P. MEYYAMMAI ACHI. Tax Case No. 1085 of 1993 (Revision No. 635 of 1993) Decided on : 10-01-1994 Advocates appeared : Mrs. Chitra Venkataraman, Additional Government Pleader (Taxes), for the petitioner. Cases Referred : State Of Tamil Nadu V. Golden Refineries (P.) Ltd. ACTS Tamil Nadu General Sales Tax Act, 1959 = Section 16, Section 16(2) JUDGMENT The judgment of the Court was delivered by VENKATASWAMI, J. - This tax revision is preferred against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, dated June 30, 1992. 2. Brief facts are the following : For the assessment year 1978-79, on the basis of the return submitted by the assessee assessment was made. Subsequently, the assessment was reopened under section 16 of the Tamil Nadu General Sales Tax Act, 1959, on the ground that the appellant had purchased from Mineral and Metal Trading Corporation (for short, "MMTC") 6.996 M. T of stainless steel sheets for Rs. 4,13,420 on various dates, and those transactions did not reflect in the return submitted by the assessee for the year in question. Though the assessee disputed the claim of the Revenue, the assessment was revised under section 16(2) including a turnover of Rs. 6,33,195 and penalty was also levied at 1 1/2 times of the tax due on the escaped turnover, and an appeal filed against that revised assessment was also dismissed by the Appellate Assistant Commissioner. Though the assessee disputed the claim of the Revenue, the assessment was revised under section 16(2) including a turnover of Rs. 6,33,195 and penalty was also levied at 1 1/2 times of the tax due on the escaped turnover, and an appeal filed against that revised assessment was also dismissed by the Appellate Assistant Commissioner. Against that appellate order, a second appeal was filed to the Tribunal, and the Tribunal, on an earlier occasion, remanded the case to the Appellate Assistant Commissioner, directing the appellate authority to furnish necessary details to the assessee to cause necessary enquiry for proving that the appellant had taken delivery of the stainless steel sheets from MMTC. 3. After remand, as mentioned above, it was found that the assessee had taken delivery of the stock in respect of three transactions out of seven disputed transactions. However, the Appellate Assistant Commissioner, taking the view that the assessee had not proved that he had not taken delivery of the stainless steel sheets in respect of the other four transactions, observed as follows : ".... I hold that the other four deliveries should have been made to the appellant only. Since the imports were against the condition of putting the sheets into manufacture, the assessment based on the presumption that the sheets were converted into vessels is also correct. I, therefore, sustain the entire assessment." Aggrieved by that, the assessee preferred a second appeal on a second time to the Tribunal. The Tribunal, on facts, found in respect of the four disputed transactions as follows : "...... As regards the four purchases said to have effected by the appellant on March 10, 1978, July 22, 1978, October 12, 1978 and December 22, 1978, the said purchases are not supported by documentary evidence to correlate in effect that appellant purchased as per the said sale notes 4.002 M.T. of stainless steel sheets from MMTC and hence it is deleted ......." The present revision petition is filed against this portion of the order of the Tribunal. 4. Mrs. Chitra Venkataraman, learned Additional Government Pleader (Taxes), strenuously argued that the Tribunal went wrong in deleting a portion of the turnover relating to the disputed four transactions on the ground that the said purchases are not supported by documentary evidence. 4. Mrs. Chitra Venkataraman, learned Additional Government Pleader (Taxes), strenuously argued that the Tribunal went wrong in deleting a portion of the turnover relating to the disputed four transactions on the ground that the said purchases are not supported by documentary evidence. According to the learned counsel, the burden is on the assessee to show that he has not taken delivery of 4.002 M.T. of stainless steel sheets as per the allotments. 5. We have seen that the Appellate Assistant Commissioner sustained the assessment on the ground of presumption in respect of these four transactions. That being the position, we cannot find fault with the order of the Tribunal that in the absence of any documentary evidence to support the purchases on various dates, in respect of the 4.002 M.T. of stainless steel sheets, the assessment on that turnover cannot be sustained. On the facts and in view of the finding of the Tribunal below, we do not think that we can accept the argument of the learned Additional Government Pleader that it is for the assessee to prove beyond doubt that she has not taken delivery of the stainless steel sheets in question. As the finding of the Tribunal is based on a perusal of records, we do not find any valid ground to interfere with the same. The petition is, therefore, dismissed. Petition dismissed.