ORISSA
To provide for the imposition and collection of tax on
the sale or purchase of goods in the State.
Be it enacted by the Legislature of the State of Orissa in the Fifty‑fifth year of the Republic of
India as follows:
1. Short
title, extent and commencement
(1) This
Act may be called the Orissa Value Added Tax Act,
2004.
(2) It
extends to the whole of the State of Orissa.
(3) It shall come into force on such date as
the Government may, by notification, appoint, and different dates may be
appointed for different provisions of this Act.
In this Act, unless the context otherwise requires,
(1) "appellate
authority" means any authority prescribed for the purpose of section 77;
(2) "appointed
day" in relation to any provision of this Act, means the date on which
such provision comes into force;
(3) "assessee" means any dealer by whom tax or any other
sum of money is payable under this Act, and includes every dealer in respect of
whom any proceedings under this Act has been initiated for the assessment of
tax payable by him;
(4) "assessing
authority" means any officer appointed under sub‑section (2) of
section 3 who is authorised by the Commissioner to
make assessment under this Act;
(5) "assessment"
means determination of tax liability under this Act and includes self
assessment, provisional assessment, audit assessment, assessment of escaped
turnover, assessment of unregistered dealers liable to be registered,
assessment of casual dealers and reassessment;
(6) "audit
assessment" means an audit assessment made under section 42;
(7) "business"
includes,
(a) any
trade, commerce or manufacture;
(b) any
adventure or concern in the nature of trade, commerce or manufacture;
(c) any transaction
in connection with, or incidental or ancillary to, such trade, commerce,
manufacture, adventure or concern;
(d) any
transaction in connection with, or incidental or ancillary to, the commencement
or closure of such trade, commerce, manufacture, adventure or concern;
(e) any
occasional transaction, whether or not there is volume, frequency, continuity
or regularity of such transaction, in the nature of such trade, commerce,
manufacture, adventure or concern,
whether or not such trade, commerce, manufacture,
adventure, concern or transaction is effected with a motive to gain or profit
or whether or not any gain or profit accrues from such trade, commerce,
manufacture, adventure, concern or transaction.
Explanation: For the
purposes of this clause,
(i) the
activity of raising of man‑made forest or rearing of seedlings or plants shall be deemed to be a
business,
(ii) transaction of sale or purchase of
capital goods pertaining to any trade, commerce, manufacture, adventure,
concern or transaction shall be deemed to be a transaction comprised in
business,
(iii) purchase
of any goods, the price of which is debited to the business and sale of any
goods, the proceeds of which are credited to the business shall be deemed to be
transactions comprised in business;
(8) "capital
goods" means plants, machinery and equipments used directly in the process
of manufacturing, but does not include such plant, machinery and equipments
which are used for the purposes and in the circumstances specified in Schedule
'U;
(9) "casual
dealer" means any person, whether as principal, agent or in any other
capacity, who has occasional transactions of buying, selling or supplying or
distributing goods in the State without having a fixed place of business for
cash or deferred payment or for commission, remuneration or other valuable
consideration and includes, whether he has a fixed place of business in this
State or not,
(i) a transporter who, while carrying any
goods in his goods vehicle, fails to disclose the name and address of the
consignor or consignee in the State or fails to furnish copy of invoice, challan, transport receipt or consignment note or document
of like nature in respect of such goods, or
(ii) an
owner or a lessee of a warehouse who fails to disclose the name and address of
the owner of any goods stored at his warehouse or fails to satisfy the
Commissioner that such goods are for his personal use or consumption;
(10) "Commissioner"
means the Commissioner of Sales Tax appointed under sub‑section (1) of
section 3 or deemed to have been appointed under clause (a) of sub‑section
(2) of section 106;
(11) "co‑operative
society" means a co‑operative society registered under the Orissa Co‑operative Societies Act, 1962 (Orissa Act 2 of 1963) and includes a co‑operative
registered under the Orissa Self‑Help Co‑operatives
Act, 2001 (Orissa Act 4 of 2002);
(12) "dealer"
means any person who carries on the business of buying, selling, supplying or
distributing goods, executing works contract, delivering any goods on hire‑purchase
or any system of payment by installments, transferring the right to use any
goods or supplying by way of or as part of any service, any goods directly or
otherwise, whether for cash or for deferred payment, or for commission,
remuneration or other valuable consideration and includes-
(a) a
casual dealer:
(b) a
commission agent, a broker or a del cruder agent or an auctioneer or any other
mercantile agent, by whatever name called,
(c) a non‑resident
dealer or an agent of a non‑resident dealer, or a local branch of a firm
or company or association or body of persons whether incorporated or not,
situated outside the State;
(d) a
person who, whether in the course of business or not,
(i) sells goods produced by him by
manufacture, agriculture, horticulture or otherwise; or
(ii) transfers
any goods, including controlled goods whether in pursuance of a contract or
not, for cash or for deferred payment or for other valuable consideration;
(iii) supplies,
by way of or as part of any service or in any other manner whatsoever, goods,
being food or any other articles for human consumption or any drink (whether or
not intoxicating), where such supply or service is for cash, deferred payment
or other valuable consideration;
(13) "declared
goods" means goods declared to be of special importance as specified under
section 14 of the Central Sales Tax Act, 1956 (74 of 1956);
(14) "documents"
means title deeds, writing or inscription and includes electronic records and
the like which is produced as documentary evidence;
(15) "electronic
Hardware Technology Park (EHTP) Unit" is a unit set up under the EHTP,
which undertakes to export their entire production of goods outside the territory
of India and is approved by the Development Commissioner of Export Processing
Zone or any other competent authority duly authorised
by the Ministry of Industry, Government of India for the purpose;
(16) "electronic
record" means electronic record as defined in the Information Technology
Act, 2000 (21 of 2000);
(17) "exempted
goods" means any goods exempted from tax under section 17;
(18) "Export
Oriented Unit (EOU)" means any industrial unit, which undertakes to export
their entire production of goods and is approved as such by the Development
Commissioner of the concerned Export Processing Zone or any other competent
authority duly authorised for the purpose by the
Ministry of Industry, Government of India;
(19) "fixed
place of business" means the place of business from which the dealer
carries out his business activities, and includes,
(a) a
place where the management of the business is undertaken, any of its branch,
office, factory or workshop, godown or warehouse;
(b) a
mine, oil or gas well, quarry, timber land or any other place from which
natural resources are extracted; or
(c) a
fixed place of business of another person (other than a broker, general
commission agent or other independent agent acting in the normal course of
business) who is carrying on business on behalf of the dealer in the State in
ordinary course of business;
(20) "Fund"
means the Orissa Consumer Welfare Fund referred to in
section 53;
(21) "goods"
means every kind of movable property not being newspapers, actionable claims,
money, stock, shares or securities, and includes all materials, commodities and
articles (including goods as goods or in some other form) involved in the
execution of any works contract or goods used in the fitting out; improvement
or repair of movable property and growing crops, grass and trees, plants
including the produce thereof and all other things attached to or forming part
of the land which are agreed to be severed before sale or under the contract of
sale;
(22) "goods
vehicle" means any motor vehicle constructed or adapted for use solely for
carriage of goods, or any motor vehicle not so constructed or adapted but when
used for carriage of goods solely or in addition to passengers, and includes
any vessel, boat, animal or any other means of conveyance other than railway
wagon or coach;
(23) "Government"
means the Government of Orissa;
(24) "gross
turnover" in relation to any period, means the aggregate of the turnover
of sales and the turnover of purchases made by a dealer during that period;
(25) "input"
means any goods purchased by a dealer in the course of his business for resale
or for use in the execution of works contract, in processing or manufacturing,
where, such goods directly goes into composition of finished products or packing
of goods for sale, and includes consumables directly used in such processing or
manufacturing;
(26) "input
tax" in relation to any registered dealer means the tax collected and
payable under this Act in respect of sale to him of any taxable goods for use
in the course of his business, but does not include tax collected on the sale
of goods made to a commission agent purchasing such goods on behalf of such
dealer;
(27) "input
tax credit" in relation to any tax period means the setting off of the
amount of input tax or part thereof under section 20 against the output tax, by
a registered dealer other than a registered dealer paying turnover tax under
section 16;
(28) "manufacture"
means any activity that brings out a change in an article or articles as a
result of some process, treatment, labour and results
in transformation into a new and different article so understood in commercial
parlance having a distinct name, character and use, but does not include such
activity of manufacture as may be notified;
(29) "output
tax" in relation to any registered dealer means the tax leviable and payable under this Act in respect of sale of
any taxable goods made by that dealer in the course of his business, and
includes tax payable by a commission agent in respect of sale of taxable goods
on behalf of such dealer;
(30) "passenger
vehicle" means a motor vehicle constructed or adapted for the carriage of
passengers;
(31) "person"
means any individual or association or body of individuals and includes a Hindu
Undivided Family, a firm, a company whether incorporated or not, a society
including a co‑operative society, a trust, a club, an institution, an
agency, a corporation, other artificial or legal person, local authority, a
department of Government, a Government enterprise and a financial institution
or bank;
(32) "place
of business" means any place where a dealer carries on business and
includes,
(a) any warehouse, godown
or other place where the dealer stores or processes his goods,
(b)
any place where a dealer produces or manufactures
goods,
(c)
any place where a dealer keeps his books of account,
(d) in
case where a dealer carries on business through an agent by whatever name
called, the place of business of such agent, or
(e) any
vehicle or vessel or any other carrier wherein the goods are stored or used for
transporting the goods;
Explanation: The place of business specified in sub‑clause
(e) shall not be construed as such for the purpose of registration under
sections 25 and 26.
(33) "prescribed"
means prescribed by rules;_
(34) "prevailing
market price" in relation to any goods sold means the published price in
force in the market at the time when the sale of such goods occasioned or, in
the absence of any such published price, the price at which such goods were
capable of being sold in the open market at that time;
(35) "property"
means any property, whether real or personal, movable or immovable, tangible or
intangible, corporal or in corporal, and includes a right or interest of any
kind, but does not include money;
(36) "published"
means published in any newspaper, journal or periodical or notified by a market
committee established under the Orissa Agricultural
Produce Markets Act, 1956 (Orissa Act 3 of 1956) or
any such authority as the Government may, by notification, specify from time to
time,
(37) "purchase"
with all its grammatical variations and cognate expressions shall be construed
from the word 'sale';
(38) "registered
dealer" means a dealer registered under this Act;
(39) "registering
authority" means any officer appointed under sub‑section (2) of
section 3 who is authorised by the Commissioner to
function as registering authority;
(40) "resale"
means a sale of goods in the same form in which they were purchased;
(41) "retailer" means a dealer, not
being a manufacturer or a person selling or dispatching goods outside the
State, or purchases or receives goods other than by way of purchase from
outside the State, who ordinarily effects sales to consumers;
(42) "return"
means any return prescribed or otherwise required to be furnished by or under
this Act;
(43) "reverse
tax" means that portion of input tax on the goods for which credit has
been availed but such goods are used subsequently for any purpose other than
resale or manufacture of taxable goods or execution of works contract or use as
containers or packing materials;
(44) "rules"
means rules made under this Act;
(45) "sale"
with all its grammatical variations and cognate expressions, means every
transfer of the property in goods, other than by way of mortgage,
hypothecation, charge or pledge, by one person to another in the course of
trade or business for cash, deferred payment or other valuable consideration,
and includes,
(a) a
transfer, otherwise than in pursuance of a contract, of property in goods for
cash, deferred payment or other valuable consideration,
(b) transfer
of property in goods (whether as goods or in some other form) involved in the
execution of works contract,
(c) delivery
of goods on hire‑purchase or any other system of payment by installments,
(d) a
transfer of goods by any unincorporated association or body of persons to a
member thereof for cash, deferred payment or any other valuable consideration,
(e) a
supply, by way of or as part of any service or in any other manner whatsoever,
of goods being food or any other article for human consumption or any drink
(whether or not intoxicating) where such supply or service is for cash,
deferred payment or other valuable consideration,
(f) a
transfer of the right to use any goods for any purpose (whether or not for a
specified period) for cash, deferred payment or other valuable consideration,
and such transfer, delivery or supply of any goods
shall be deemed to be a sale of those goods by the person making the transfer,
delivery or supply and a purchase of those goods by the person to whom such
transfer, delivery or supply is made, but does not include a mortgage,
hypothecation, charge or pledge.
Explanation: (a) A sale or purchase of goods shall be
deemed to have taken place inside the State if the goods are within the State
(i) in the case of specific or ascertained goods, at the time
the contract of sale is made, and
(ii) in
the case of unascertained or future goods, at the time of their appropriation
to the contract of sale by the seller, or by the buyer, whether assent is prior
or subsequent to such appropriation.
(b) Where
there is a single contract of sale or purchase of goods situated in more than
one place, the provisions of this Explanation shall apply as if there were
separate contracts in respect of the goods at each of such places.
Note: A sale or purchase of goods shall not be deemed
to have taken place inside the State, if the goods are sold
(i) in the course of inter‑State trade or commerce, or
(ii) outside
the State, or
(iii) in
the course of import into or export out of the territory of India;
(46) "sale
price" means the amount of valuable consideration received or receivable
by a dealer as consideration for the sale of any goods less any sum allowed as
cash discount or trade discount according to the practice normally prevailing
in the trade but inclusive of any sum charged for anything done by the dealer
in respect of the goods at the time of or before delivery thereof, and the
expression 'purchase price' shall be construed accordingly.
Explanation: (a) Where according to the terms of
contract, the cost of freight in respect of transportation of goods are
incurred by the dealer for or on behalf of the purchaser such cost of freight
shall not be included in the sale price but the burden of proof thereof shall
be on the dealer.
(b) In
case of sale by hire‑purchase agreement, the prevailing market price of
the goods on the date on which such goods are delivered to the purchaser under
such agreement shall be deemed to be the sale price.
(c) In
relation to transfer of right to use any goods for any purpose (whether or not
for a specified period), the consideration or the hire‑charges received
or receivable for such transfer shall be the sale price.
(d) Amount
of duties levied or livable on the goods under the Central Excise Act, 1944 (1
of 1944), and the Customs Act, 1962 (52 of 1962), whether such duties are
payable by the seller or any other person, shall be included in the sale price.
(e) Amount
received or receivable by the seller by way of deposit, warranty (whether
refundable or not) which has been received or is receivable whether by way of
separate agreement or not, in connection with, or incidental or ancillary to,
the sale of goods shall be deemed to be included in the sale price.
(f) The
sale price shall not include the tax paid or payable under this Act;
(47) "Self
assessment" means a true and correct determination of net tax liability by
a dealer in relation to any tax period;
(48) "Software
Technology Park (STP)" unit means a unit set up under the STP, which
undertakes to export their entire production of goods outside the territory of
India and is approved by the Development Commissioner of the concerned Export
Processing Zone or any other competent authority duly authorised
by Ministry of Industry, Government of India for the purpose;
(49) "Special
Economic Zone (SEZ)" means any Special Economic Zone specified by the
Government of India by notification under section 76A of the Customs Act, 1962
(52 of 1962);
(50) "State"
means the State of Orissa;
(51) "tax"
means tax chargeable under this Act;
(52) "tax
invoice" means a document showing the goods sold with price, quantity and
other details as required under section 62;
(53) "tax
period" means such period for which return is required to be furnished by
or under this Act;
(54) "taxable
goods" means goods liable to tax under this Act,
(55) "taxable
limit", in relation to the business of a dealer is that part of the gross
turnover of sales or purchases, as the case may be, specified in sub‑section
(4) of section 10;
(56) "taxable
turnover" means the turnover on which a dealer is liable to pay tax as
determined after making such deduction from his gross turnover and in such
manner as may be prescribed;
(57) "transporter",
"carrier" or "transporting agent" means the owner or any
person having possession or control of a goods vehicle, who transports on
account of any other person for hire or on his own account, any goods from, one
place to another, and includes any person whose name is entered in the permit
issued under the Motor Vehicles Act, 1988 (59 of 1988) as the holder thereof,
the driver or any other person in‑charge of such vehicle;
(58) "Tribunal"
means the Orissa Sales Tax Tribunal constituted or
deemed to have been constituted under section 4;
(59) "turnover
of purchases" means the aggregate of the amounts of purchase price paid
and payable by a dealer in respect of the purchase or receipt of goods liable
to tax under section 12 during a given period;
(60) "turnover
sales" means the aggregate of the amounts of sale price received or
receivable by a dealer in respect of sale or supply of goods effected or made
during a given period;
(61) "vehicle"
includes every wheeled conveyance used for the carriage of goods or goods in
addition to passengers;
(62) "vessel"
includes any ship, barge, boat, raft, timber, bamboos or floating materials
propelled in any manner;
(63) "works
contract" means a contract for the construction, building, manufacture,
processing, fabrication, erection, installation, fitting out, improvement,
modification, repair or commissioning of any property;
(64) "year"
means the financial year.
(1) The Government shall, for carrying out
the purposes of this Act, appoint a person to be the Commissioner of Sales Tax.
(2) The
Government may appoint such other persons under any prescribed designation
including a Special Commissioner, an Additional Commissioner, a Joint
Commissioner, a Deputy Commissioner, an Assistant Commissioner, a Sales Tax
Officer, or an Assistant Sales Tax Officer to assist the Commissioner and they
shall exercise such powers as may be conferred, and discharge such functions as
may be required, by or under this Act within such local area as may be assigned
by the Commissioner.
(3) The
Commissioner shall have jurisdiction over the whole of the State and the other persons appointed under sub‑section (2) shall, within such
areas as the Commissioner may, by general or special order specify, exercise
such powers as are, or may be conferred and discharge such functions as may be
required, by or under this Act.
(4) Without
prejudice to any other functions that the Commissioner may perform under the
provisions of this Act, he shall exercise the following powers and discharge
the following functions:
(a) to superintend and control all persons
employed in the executive administration of tax;
(b) subject to the provisions of this Act
and the rules, to make rules of procedure and conduct of administration for the
guidance of persons subordinate to him;
(c) to call for any record from any
subordinate officer and also to call for any paper or document in connection
with any assessment under this Act;
(d) to inspect the records and to
superintend the work of officers subordinate to him and their offices.
4. Orissa Sales
Tax Tribunal
(1)
(a) The Government shall,
by notification, constitute a Tribunal to be called the Orissa
Sales Tax Tribunal, which shall exercise such powers and discharge such
functions as may be conferred or imposed by or under the provisions of this
Act.
(b) The
Tribunal shall consist of six members, of whom, three shall be appointed from
among the Members of the Orissa Superior Judicial
Service (Senior Branch) (hereinafter called the Judicial Members of the
Tribunal) and the other three Members shall be appointed from among the Members
of the Orissa Finance Service, Class‑I
(Upgraded Super time) (hereinafter called the Accounts Members of the
Tribunal).
(c) The senior‑most judicial Member of
the Tribunal shall be the Chairman of the Tribunal, who shall constitute
Benches, allot cases to the Benches and exercise supervision in respect of
their disposal.
(d) The Chairman of the Tribunal shall look
to the overall administration of the Tribunal subject to regulations to be made
by the Tribunal with the previous sanction of the Government consistent with
the provisions of this Act and rules.
(e) Any vacancy in the Membership of the
Tribunal shall be filled up by the Government.
(2) Notwithstanding
anything contained in sub‑section (1), the Orissa
Sales Tax Tribunal constituted under the Orissa Sales
Tax Act, 1947 (Orissa Act 14 of 1947) shall be deemed
to have been constituted under this Act with effect from the appointed day and
shall be called as such from that date.
(3) The
functions of the Tribunal may be exercised by a Bench consisting of
(a) the Chairman or any other single Member,
as may be constituted by the Chairman, when the total disputed amount of tax
and interest and penalty, if any, involved in a case does not exceed rupees two
lakhs;
(b) the Chairman or any other Judicial
Member and an Accounts Member, as may be constituted by the Chairman, when the
total disputed amount of tax and interest and penalty, if any, involved in a
case exceeds rupees two lakhs, but does not exceed
rupees ten lakhs; and
(c) three Members of the Tribunal, which
shall include the Chairman or any other Judicial Member and one Accounts
Member, when the total disputed amount of tax and interest and penalty, if any,
involved in a case exceeds rupees ten lakhs and shall
be presided over by the Chairman or, as the case may be, the senior judicial
Member.
(4)
(a) Where an appeal or
application is heard by a Bench consisting of two Members and the Members are
divided in opinion on any point or points shall be referred to the Tribunal
consisting of three Members.
(b) Where
an appeal or application is heard by three Members of the Tribunal and the
Members are divided in opinion on any point or points, such point or points
shall be decided in accordance with the opinion of the majority.
(5) Any Member who has previously dealt with
any case coming up before the Tribunal in any other capacity or is personally
interested in any case coming up before the Tribunal shall be disqualified to
hear that case.
5. Delegation of the Commissioner's powers and functions
Subject to such restrictions and conditions as maybe
prescribed, the Commissioner may, by order in writing, delegate any of his
powers and functions under this Act or the rules to any person appointed under
sub‑section (2) of section 3, and any order passed by any such person in
exercise of the powers so delegated shall be deemed to be an order passed by
that person.
6. Power to transfer proceedings
(1) Notwithstanding
anything contained elsewhere in this Act or in the rules, the Commissioner may,
by order in writing, transfer any proceeding or class of proceedings under any
provision of this Act from any person appointed under sub‑section (2) of
section 3 to any other person so appointed, whether or not such other person
has jurisdiction in respect of the local areas to which such proceedings or
class of proceedings relate.
(2) The
person to whom any proceeding is transferred under sub‑section (1) shall
proceed to dispose of such proceeding as if it has been initiated by himself.
(3) The
transfer of a proceeding shall not require reissue of any notice, if such a
notice has already been issued before transfer and the person to whom the
proceeding is transferred may, at his discretion, continue the proceeding from
the stage at which it was left by the person from whom it was transferred.
7. Person
appointed under section 3 and Members of the Tribunal to be public servants
The Commissioner and all persons appointed under
section 3, and the Members of the Tribunal appointed under section 4 shall be
deemed to be public servants within the meaning of section 21 of the Indian
Penal Code, 1860 (45 of 1860).
No suit, prosecution or other legal proceedings shall
lie against any officer or servant of Government employed for execution of the
provisions of this Act or the rules for anything which is in good faith done or
intended to be done.
THE INCIDENCE, LEVY AND RATE OF TAX
9. Charge to tax and incidence
There shall be levied in accordance with the
provisions of this Act,
(a) a Value Added Tax hereinafter called VAT
on the sale or purchase of goods by a dealer; and
(b) a turnover tax in lieu of VAT on the taxable
turnover of sales of every retailer registered under this Act, whose annual
gross turnover does not exceed rupees ten lakh and
dealers of any specific class or category as may be notified under section 16.
(1) Subject to other provisions
of this Act, every dealer
(i) whose gross
turnover of sales or purchases, as the case may be, during a period of twelve
consecutive months immediately preceding the appointed day exceeded the taxable
limit; or
(ii) who is registered or liable to be
registered under the Orissa Sales Tax Act, 1947. (Orissa Act 14 of 1947) or the Central Sales Tax Act, 1956
(74 of 1956); or
(iii) to
whom clauses (i) and (ii) do not apply, but-
(a) whose
gross turnover exceeds the taxable limit during any period of twelve
consecutive months, or
(b) who
has become liable to pay tax under the Central Sales Tax Act, 1956 (74 of
1956), or
(c) who is
registered as a dealer under the Central Sales Tax Act, 1956 (74 of 1956) or
under this Act at any time on and from the appointed day, shall be liable to
pay tax in accordance with the provisions of this Act,
(a) in
cases of clauses (i) and (ii), with effect from the
appointed day,
(b) in
case of sub‑clause (a) of clause (iii), with effect from the date
immediately following the day on which his gross turnover exceeded the taxable
limit during a period of any twelve consecutive months, and
(c) in
cases of sub‑clauses (b) and (c) of clause (iii), with effect from the
date on which he becomes so liable, or the date or registration, whichever is
earlier.
(2) Every dealer who has become liable to pay
tax under this Act shall continue to be so liable until the expiry of three
consecutive years during each of which his gross turnover has failed to exceed
the taxable limit and his liability to pay tax under this Act shall cease on
the expiry of the period specified above.
Explanation: In computing the period of three years,
the part of a year shall be ignored.
(3) Every
dealer who has ceased to be liable under sub‑section (2) shall be again
liable to pay tax under this Act with effect from the date immediately
following a period not exceeding twelve consecutive months during which his
gross turnover again exceeds the taxable limit.
(4) For
the purposes of this Act, taxable limit shall be in relation to any dealer who
(a) purchases or receives
any goods from outside the
State for sale within the State on his own behalf
or on behalf of his
principal: NIL
(b) executes
any works contract: Rs. 50,000/
(c) manufactures or produces
any goods for sale: Rs. 1,00,000/
(d) carries
on any business other than those referred Rs.
2,00,000/
to in clauses (a), (b) and (c):
(5) For
the purpose of calculating the gross turnover to determine the liability of a
dealer to pay tax under this Act turnover of all sales whether taxable or not
and all purchases subject to tax shall be taken.
Explanation: The expressions sales and purchases shall
mean sales and purchases made by a dealer on his own account and those made on
behalf of principal whether disclosed or not.
(1) The
tax shall be levied under this Act on every dealer who is liable to pay tax
under section 10 on his taxable turnover of sales.
(2) For
the purposes of sub‑section (1), the expression "taxable turnover of
sales" shall mean, in relation to a dealer liable to pay tax on sale of
goods under sub‑section (1) of section 10, that part of the gross
turnover of sales during any period which remains after deducting there from
(a) the
turnover of sales of goods exempted from tax under section 17;
(b) the turnover of sales of goods which are
shown to the satisfaction of the Commissioner to have taken place-
(i) in course of inter‑State trade or commerce, or
(ii) outside
the State, or
(iii) in
the course of import into or export out of the territory of India.
Explanation: Sections 3,4 and 5 of the Central Sales
Tax Act, 1956 (74 of 1956) shall apply to determining whether or not a
particular sale has taken place in the manner indicated in sub‑clauses (i), (ii) and (iii) of clause (b);
(c) in case of turnover of sales in relation
to works contract, the charges towards labour, services
and other like charges subject to such conditions and restrictions as may be
prescribed:
PROVIDED that where the amount charged towards labour, services and other like charges in such contract
are not ascertainable from the terms and conditions of the contract or the
books of account maintained for the purpose, the amount of such charges shall
be calculated at the prescribed rate; and
(d) such other sales on such conditions and
restrictions as may be prescribed.
(3) Notwithstanding anything contained in any
other provision of this Act and subject to such conditions as may be
prescribed, a dealer executing works contract may exercise option in writing to
pay tax by way of composition at such rate and on such portion of the value of
consideration received or receivable and in such manner as may be prescribed.
(4)
(a) Notwithstanding
anything contained in the Sale of Goods Act, 1930 (3 of 1930), but subject to
clauses (b) and (c), the sale of goods shall, for the purposes of this Act, be
deemed to have taken place when title or possession of the goods is transferred
or, in the case of works contract, when the goods are incorporated in the
course of execution of the works contract, whether or not there is receipt of
payment for such sale.
(b) Where, before the time applicable
under clause (a), the dealer selling the goods issues a tax invoice in respect
of such sale, the sale shall, to the extent it is covered by the invoice or
payment, be deemed to have taken place at the time the invoice is issued or the
payment is received, whichever is earlier.
(c) Where a dealer issues a tax invoice
in respect of any sale not falling under clause (b) within fourteen days from
the time specified under clause (a), the sale shall be deemed to have taken
place at the time the invoice is issued.
Every dealer who, in the course of his business,
purchases or receives any goods
(i) from a
registered dealer, in the circumstances in which no tax under section 11 is
payable by that registered dealer on such goods, or
(ii) from
any person other than a registered dealer,
shall be liable to pay tax on the purchase price or
prevailing market price of such goods, if after such purchase or, as the case
may be, receipt, the goods are not sold within the State or in the course of
inter‑State trade or commerce or in the course of export out of the
territory of India, but are
(a) sold
or disposed of otherwise; or
(b) consumed
or used in the manufacture of goods declared to be exempt from tax under this
Act; or
(c) after
their use or consumption in the manufacture of goods, such manufactured goods
are disposed of otherwise than by way of sale in the State or in the course of
inter‑State trade or commerce or export out of the territory of India; or
(d) used
or consumed otherwise, and such tax shall be levied at the same rate, at which
tax under section 11 would have been levied, on the sale of such goods within
the State on the date of such purchase or receipt.
13. Levy of
tax on containers and packing material
Where any goods is packed in any container or packing
materials are sold, such container or packing material shall be deemed to have
been sold or purchased along with such goods and the tax under section 11 or
section 12 shall be levied on the sale or purchase of such container or packing
material at the same rate as applicable to the sale or purchase of the goods
contained therein:
PROVIDED that no tax under section 11 or section 12
shall be levied where the container or packing material is sold or purchased
along with the goods exempted from tax under section 17.
(1) The
Value Added Tax payable by a dealer under this Act shall be levied on his
taxable turnover in respect of different goods specified in Schedule B and
Schedule C at the rate mentioned under the said Schedules in respect of those
goods.
(2) The
levy of tax under sub‑section (1) in respect of goods specified in
Schedule C shall be in the manner provided in section 15.
15. Points
of levy in respect of certain goods
The levy of Value Added Tax in respect of different
goods as specified in Schedule C shall be at such point of sale in a series of
sales by successive dealers as the Government may, by notification, specify in
relation to those goods.
Every dealer registered under this Act whose gross
turnover does not exceed rupees ten lakhs and every
registered dealer of any specific class or category as the Government may by
notification, direct, shall pay, in such manner and subject to such conditions
and restrictions as may be prescribed, in lieu of the tax payable under section
11, as turnover tax at such percentage of the taxable turnover as the
Government may, by notification, specify, in addition to the tax payable on the
taxable turnover of purchases under section 12:
PROVIDED that any such retailer or dealer may, by
exercising option in the prescribed manner, elect to pay tax as specified under
section 11 in lieu of the turnover tax.
17. Sales
of goods exempt from tax
The sale of all goods specified in Schedule A shall be
exempt from tax subject‑to conditions and exceptions set out therein.
The rate of tax on the sale of goods subject to levy
of tax shall be zero when such goods are sold
(a) in course of inter‑State
trade or commerce; or
(b)
in course of export out of the territory of India; or
(c)
to a dealer having business under
(i)
a SEZ; or
(ii)
a STP; or
(iii) an
EHTP; or
(d)
to an EOU.
(1) The
net tax payable by a registered dealer for a tax period shall be the difference
between the output tax (plus purchase tax, if any), and the input tax, which
can be determined from the following formula:
Net tax payable = (O+P)‑I
Where
'O' denotes
the output tax payable for any tax period,
'P' denotes
the tax payable on purchases by a registered dealer for that tax period under
section 12 and
'I' denotes the input tax
paid or payable for the said tax period.
(2) The
net tax payable by a dealer liable to pay tax but not registered under this Act
for a tax period shall be equal to the output tax payable for the said tax
period.
(3) If
the amount calculated under sub‑section (1) is negative, the same shall
be carried forward to the next tax period or periods for adjustment against the
Output tax payable.
(1) Subject
to the provisions of this Act, for the purpose of calculating the net tax
payable by a registered dealer for any tax period, an input tax credit as
determined under this section shall be allowed to such registered dealer
against the tax paid or payable in respect of all sales or purchases taxable
under this Act, other than sales or purchases of goods specified in Schedule C
and Schedule D.
(2) The
input tax credit to which a registered dealer is entitled under sub‑section
(1) shall be the amount of tax paid by the registered dealer to the seller on
his turnover of purchase of goods during the tax period, calculated, subject to
the provisions contained in sub‑sections (3), (4) and (5), in such manner
as may be prescribed.
(3) Input
tax credit shall be allowed for purchases made within the State from a
registered dealer holding a valid certificate of registration in respect of goods
intended for the purpose of
(a) sale
or resale by him in the State;
(b) use as
inputs or as capital goods in the manufacturing or processing of goods, other
than those specified in Schedule A and Schedule C and Schedule D for sale;
(c) sale
of goods subject to levy of tax at zero rate under section 18;
(d) for
use as containers for packing of goods, other than those exempt from tax under
this Act, for sale or resale; or
(e) transfer
of stock of taxable goods other than by way of sale, to any place outside the
State:
PROVIDED that-
(a) the
input tax credit on purchases intended for the purpose of clause (e) shall only
be allowed in respect of the amount of tax paid or payable in excess of tax at
the rate of four per centum;
(b) if
goods purchased are used partially for the purposes specified in this sub‑section,
input tax credit shall be allowed proportionately to the extent they are used
for such purposes; and
(c) where
a registered dealer sells or despatches goods, both
taxable and exempt under this Act, the input tax credit shall be allowed
proportionately only in relation to the goods which are not so exempt.
(4) Notwithstanding
anything contained in this section or elsewhere in this Act, and subject to
conditions and restrictions and in such manner, as may be prescribed, input tax
credit may be allowed partially or in phased manner, in respect of such goods
or such class of dealers or in such cases, as may be prescribed.
(5)
(a) Input tax credit on
capital goods shall be allowed from the date of first sale of taxable goods
produced or manufactured after the commencement of such production and shall be
adjusted against the output tax over a period not exceeding three years:
PROVIDED that no input tax credit shall be allowed on
such capital goods used for the purposes and in the circumstances as specified
in Schedule D.
(b) Input
tax credit under clause (a) of this sub‑section shall be allowed in lump
sum provided the value of such capital goods is rupees on lakh
or less.
(c) Input
tax credit on capital goods shall be allowed only on purchase of such goods
made on or after the appointed day.
(d) Incase
of closure of business before the commencement of commercial production, no
input tax credit on capital goods shall be allowed and input tax credit carried
forward, if any, shall be forfeited.
(e) In
case where there is production of both taxable goods and goods exempt from tax,
the input tax credit admissible on capital goods shall be determined in the
manner prescribed.
(f) Where
the used capital goods are sold, the same shall be subject to tax under this
Act.
(6) Input
tax credit shall not be claimed by the dealer for any tax period until the
dealer receives the tax invoice in original evidencing the amount of input tax:
PROVIDED that for good and sufficient reasons to be
recorded in writing, the Commissioner may, in the prescribed manner, allow such
credit subject to such conditions and restrictions as may be specified in the
order allowing the credit.
(7) A
registered dealer who intends to claim input tax credit shall, for the purpose
of determining the amount of input tax credit, maintain accounts and such other
records as may be prescribed in respect of the purchases and sales made by him
and stock in trade held.
(8) No input
tax credit shall be claimed by or be allowed to a registered dealer
(a) in
respect of any taxable goods purchased by him from another registered dealer
for resale but given away by way of free sample or gift;
(b) who makes
payment of turnover tax as provided in section 16;
(c) in
respect of capital goods used for the purposes and in the circumstances as
specified in Schedule D;
(d) in
respect of goods brought from outside the State against the tax paid in any
other State;
(e) in
respect of stock of goods remaining unsold at the time of closure of business;
(f) in
respect of goods purchased on payment of tax, if such goods are not sold
because of any credit, damage and destruction;
(g) where
the tax invoice is not available with the dealer or there is evidence that the
same has not been issued by the selling registered dealer from whom the goods
are purported to have been purchased;
(h) in
respect of goods purchased from a dealer whose certificate of registration has
been suspended;
(i) in respect of sale of goods specified in Schedule A;
(j) in
respect of sale of goods specified in Schedule C;
(k) in
respect of raw material used in manufacture or processing of goods, where the
finished products are exempt from tax; and
(l) executing
works contract, in relation to works contracts executed by him, where he has
exercised option under sub‑section (3) of section 11 to pay tax by way of
composition; and
(m) in any other case as the
Government may, by notification, specify.
(9) If goods purchased
(a) are
intended for any of the purposes specified under sub‑section (3) but are
subsequently used otherwise, or
(b) are
lost due to theft, damage or for any other reason, or
(c) remain
unsold at the time of closure of business,
the input tax credit availed in respect of purchase of
such goods shall be deducted from the input tax credit admissible for the tax
period during which any one or more of such events occurs:
PROVIDED that if part of the goods so purchased are
used otherwise or lost or remain unsold, the amount of reverse tax credit shall
be proportionately calculated:
PROVIDED FURTHER that if no input tax credit is
available for such deduction, the input tax credit availed of shall be
repayable in the manner prescribed.
(10) Where
the Commissioner is of the opinion that the method used by a registered dealer
to determine the extent to which goods are used, consumed or supplied or
intended to be used, consumed or supplied, in the course of manufacturing
taxable goods or making sales liable to tax, is not fair and appropriate in the
circumstances, he may, after giving the dealer an opportunity of being heard,
for reasons to be recorded in writing, reject the method adopted by the dealer
and determine the amount of input tax credit admissible.
(11) Subject
to the restrictions specified in sub‑section (8), input tax credit shall
be allowed to a registered dealer in respect of the amount of tax paid or
payable on purchase of taxable goods from a registered dealer, which the dealer
holds on the date of registration, if such purchases were made within three
months prior to the date of his registration.
21. Input
tax credit exceeding tax liability
(1) If
the input tax credit of a registered dealer other than an exporter selling
goods outside the territory of India determined under section 20 for any tax
period exceeds the tax liability for that period, the excess credit shall be
set off against any outstanding tax, penalty or interest under this Act against
that dealer.
(2) The
excess input tax credit after adjustment under sub‑section (1), shall be
carried forward as an input tax credit, to the subsequent tax period or
periods, till it is fully adjusted:
PROVIDED that no excess input tax credit for a tax
period shall be carried forward exceeding a period of twenty‑four months
from the close of the year to which that tax period relates.
(3) Where
input tax credit is so carried forward, a quarterly credit statement shall be
forwarded to the concerned dealer and the claims reconciled accordingly.
22. Adjustment
of input tax credit
Where any purchaser, being a registered dealer, has
been issued with a credit note or debit note in terms of section 23, or where
he returns or rejects goods purchased, as a consequence of which the input tax
credit, availed by him for any period to which the purchase of goods relates,
becomes less or excess, he shall make due adjustment of the amount of such less
credit or excess credit allowed to him in respect of the tax period in which
the credit note or debit note has been issued or goods are returned, subject to
conditions as may be prescribed.
23. Credit
notes and debit notes
(1) Where
a tax invoice has been issued in respect of any sale and the amount shown as
tax charged in the tax invoice is found to be in excess of the tax payable
under this Act in respect of that sale, the registered dealer making the sale
shall provide the purchaser with a credit note containing the requisite
particulars as may be prescribed.
(2) Where
the tax invoice has been issued in respect of any sale and the tax charged in
the tax invoice in respect of that sale is found to be less than the amount of
tax payable under this Act, the registered dealer making the sale shall provide
the purchaser with a debit note containing the requisite particulars as may be
prescribed.
(3) In
case of goods returned or rejected by the purchaser, a credit note shall be
issued by the selling dealer to the purchaser and a debit note shall be issued
by the purchaser to the selling dealer containing the requisite particulars as
maybe prescribed.
REGISTRATION OF DEALERS, CANCELLATION AND AMENDMENT OF
REGISTRATION CERTIFICATE
24. Persons
liable to be registered
No dealer shall, while being liable to pay tax under
section 10, carry on business as a dealer unless he has been registered under
this Act and possesses a certificate of registration, and no dealer shall be
issued more than one certificate of registration for his business in the State.
25. Compulsory
registration of dealers
(1) Every
dealer required under section 24 to be registered shall make an application in
the prescribed manner to the registering authority within thirty days from the
date of his liability to pay tax, and such application shall be accompanied by
a declaration in the prescribed form duly filled in and signed by the dealer
specifying therein such particulars as may be prescribed:
PROVIDED that where a dealer has more than one place of
business inside the State, he shall declare one of such places as the principal
place of business and make the application for the principal place of business,
in the manner prescribed.
(2) If
the registering authority, after causing such enquiry as he deems necessary, is
satisfied that the applicant is a bona fide dealer and the application for
registration is correct and complete and that the requirements of the
provisions of this Act and rules have been complied with, he shall register the
applicant and grant him a certificate of registration in the prescribed form,
which shall specify the class or classes of goods dealt in or manufactured by
him and such registration certificate shall be assigned a number in the manner
as may be prescribed:
PROVIDED that the registration certificate issued in
respect of dealers liable to pay turnover tax under section 16 shall be in such
different form and bear such number in such manner, as may be prescribed.
(3) Nothing
in sub‑section (2) shall debar the registering authority from refusing to
grant a certificate of registration to the applicant after giving him a
reasonable opportunity of being heard, if
(a) the
applicant has not paid any dues payable by him under this Act or under the Orissa Sales Tax Act, 1947 (Orissa
Act 14 of 1947) or under the Central Sales Tax Act, 1956 (74 of 1956) in
respect of any business;
(b) any
person associated with the business for which the application for grant of
registration is made is in arrears of any dues under the provisions of this Act
or the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) in respect of any business; or
(c) any
earlier certificate of registration granted to the applicant or any person
associated with the business for which the application for grant of registration
is made, has been cancelled under the provisions of this Act or the Orissa Sales Tax Act, 1947 (Orissa
Act 14 of 1947) and the circumstances and reasons for which the certificate was
cancelled continue to exist; or
(d) for
any other good and sufficient reasons to be recorded in writing.
(4) Where
the application for registration is made under this section, the registering
authority shall grant him the certificate of registration effective from the
date of filing of such application:
PROVIDED that the registering authority shall grant to
such dealer the certificate of registration from the date of commencement of
liability to pay tax where the application for registration has been made
within thirty days of such date.
(5) Where
a dealer registered under the Orissa Sales Tax Act,
1947 (Orissa Act 14 of 1947) continues to be so
registered on the day immediately before the appointed day and is liable to pay
tax under this Act on such appointed day, shall be deemed to be registered
under this Act and the registering authority shall issue to such dealer, in the
prescribed manner, a certificate of registration under this Act in the
prescribed form and the certificate of registration so issued shall be
effective from the appointed day:
PROVIDED that where any such dealer has more than one
place of business inside the State, the registering authority shall issue to
the dealer, one registration certificate in respect of any such place of
business, as he deems appropriate, unless the dealer intimates in writing, to
the registering authority, within fifteen days from the appointed day, the
principal place of his business in the State in respect of which the
certificate of registration shall be issued.
(6) When
any dealer has been convicted or has paid composition money under section 86,
in respect of any contravention of the provision of section 24, the registering
authority shall register such dealer and grant him a certificate of
registration and such registration shall take effect from the date of the order
granting such registration.
(1) Any
person, who intends to establish a business for, the purpose of manufacturing
or processing of taxable goods of value exceeding rupees two lakhs per year for sale, may, notwithstanding that he is
not liable to pay tax under section 10, apply in the prescribed form and manner
to the registering authority for registration:
PROVIDED that for the purpose of this sub‑section,
the person shall have to furnish such evidence as may be required by the
registering authority in support of his intention to establish a business for
manufacturing or processing of taxable goods for sale.
(2) In
respect of an application for registration under sub‑section (1), the
provisions of sub‑sections (2), (3) and (4) of section 25 shall apply.
(3) Every
dealer who has been registered on application made under this section shall, so
long as his registration remains in force, be liable to pay tax under this Act.
(4) The
registration of a dealer on application made under this section shall be in
force for a period of not less than three complete years, unless cancelled
earlier.
(1) The
registering authority may, for proper realisation of
tax payable under this Act and for enforcement of lawful conduct of any dealer
from time to time, demand from a registered dealer or from a dealer who has
applied for registration under this Act, a reasonable security, or additional
security, as the case may be, to be paid in the prescribed manner and if the
security so demanded is not paid within such time as may be specified in the
order demanding such security, he may, notwithstanding anything contained in
this Act,
(a) if the
defaulter happens to be a registered dealer, cancel the certificate of
registration granted to him; or
(b) if the
defaulter is a dealer who has applied for registration, refuse to grant him
such registration:
PROVIDED that no such cancellation or refusal shall be
made unless the dealer has been given a reasonable opportunity of being heard.
(2) In
case there is reasonable apprehension or likelihood of evasion of tax as a
result of misutilisation of way bills, the
registering authority may, for reasons to be recorded in writing, demand
adequate security or additional security, as the case may be, in the prescribed
manner from the dealer before issue of way bills to him on application made in
that behalf.
(3) The
registering authority may, by order, adjust or forfeit, as the case may be, the
whole or any portion of the security furnished by a dealer
(a) for realising any amount of tax, penalty or interest payable by
the dealer; or
(b) if the
dealer has misused any forms or has failed to keep them in proper custody:
PROVIDED that no order shall be passed under this sub‑section
without giving the dealer a reasonable opportunity of being heard.
(4) Where,
by reason of any order under sub‑section (3), the security furnished by a
dealer is forfeited in whole or is rendered insufficient, such dealer shall, on
demand made by order of the registering authority, furnish fresh or further
security of the requisite amount or shall make up the deficiency, as the case
may be, in such manner and within such period as may be specified in such order.
(5) The
registering authority may, on application by a dealer who has furnished
security as required under sub‑section (1), refund in the prescribed
manner any amount of security or part thereof if such security is not required
for the purposes for which it was furnished.
28. Penalty
for failure to be registered
(1) Without
prejudice to any other provisions in this Act, when a dealer has, without
reasonable cause, failed to get himself registered within the time provided
under sub‑section (1) of section 25, the registering authority may, after
giving such dealer a reasonable opportunity of being heard, direct him to pay,
by way of penalty, a sum of rupees five thousand:
PROVIDED that no such penalty shall be imposed under
this sub‑section in respect of the same offence for which a prosecution
under section 82 has been instituted and no such prosecution shall be initiated
in respect of an offence for which a penalty has been imposed under this
section.
(2) If
a penalty is imposed under sub‑section (1), the registering authority
shall issue a notice in the prescribed form directing the dealer to pay such
penalty by such date as may be specified in the notice and the penalty imposed
shall be paid to Government Treasury.
29. Liability
in case of grant of registration by mistake
Where a dealer after being registered under this Act
is found that he was not entitled under the provisions of section 25 or section
26 to be so registered, he shall be liable to pay tax during the period from
the date on which his certificate of registration took effect till it is
cancelled, notwithstanding that he was not liable to pay tax under this Act.
30. Suspension
of registration certificate
(1) If a
dealer-
(a) fails
to file the return under this Act within the time prescribed; or
(b) knowingly
furnishes incomplete or incorrect particulars in his returns; or
(c) fails
to pay any tax including penalty or interest, if any, due from him under the
provisions of this Act; or
(d) having
issued tax or retail invoices, fails to account for the said invoices in his
books of account; or
(e) holds,
accepts or furnishes or causes to be furnished, a way bill which he knows or
has reason to believe to be false; or
(f) is
found to have no business at the place declared in the application for
registration as his place of business; or
(g) contravenes
any of the provisions of this Act; or
(h) discontinues
his business and fails to furnish information regarding such discontinuation,
or if there is any other reason for apprehension of
evasion of tax or any attempt to evade tax, which, in the opinion of the
registering authority, is good and sufficient, the registering authority may,
at any time, for reasons to be recorded in writing, suspend the certificate of
registration of such dealer, by notification, in the manner prescribed.
(2) Where
a certificate of registration is suspended under sub‑section (1), the
registering authority shall issue a notice to the dealer concerned requiring
him to appear in person or through authorised
representative and produce records, documents and evidence on the date and time
specified therein., which in no case shall be later than thirty days from the
date of such suspension, relying on which he intends to rebut such suspension.
(3) The
certificate of registration suspended under sub‑section (1) may be
restored on an application made by the dealer along with evidence, to the
satisfaction of the registering authority, of payment of taxes due and
submission of returns or the evidence to the effect that the grounds on which
the certificate of registration has been so suspended is erroneous or not
applicable, as the case may be.
(4) Where
the certificate of registration of a dealer is suspended or is restored after
such suspension, the information shall be widely publicised
through publication in the Commercial Tax Gazette and in any other manner as
may be prescribed.
31. Cancellation
of certificate of registration
Where-
(a) any
business in respect of which a certificate of registration has been granted to
a dealer under this Act is discontinued; or
(b) in the
case of transfer of business by a dealer, the transferee already holds a
certificate of registration under this Act; or
(c) an
incorporated body is closed down or otherwise ceases to exist; or
(d) the
owner of a proprietorship business dies leaving no successor; or
(e) in
case of a firm or association of persons, if it is dissolved; or
(f) a
dealer has ceased to be liable to pay tax under this Act,
the registering authority may, by order, cancel the
certificate of registration of such dealer or the transferor dealer, as the
case may be, from such date as may be specified in that order.
(2) The certificate of
registration shall be deemed to be inoperative-
(a) in
case of clause (a) and clause (b) of sub‑section (1), with effect from
the date of discontinuance or transfer of the business, as the case may be;
(b) in
case of clauses (c), (d), (e) and (f) of sub‑section (1), from the date on
which the liability of the dealer to pay tax has ceased,
notwithstanding the fact that the certificate of registration is
cancelled from a later date.
(3) A
registered dealer, whose certificate of registration becomes liable for
cancellation under clauses (a), (b), (c), (e) and (f) of sub‑section (1)
shall apply for cancellation of the registration to the registering authority
in such manner and within such time as may be prescribed.
(4) On
receipt of such application, if the registering authority is satisfied that the
certificate of registration of the dealer is liable to be cancelled under sub‑section
(1), he may cancel such certificate.
(5) Where
the dealer whose certificate of registration has been suspended under sub‑section
(1) of section 30 fails to furnish the requisite evidence within the time
specified under sub‑section (3) of the said section, the registering
authority shall, after causing such inquiry as he may consider necessary and
after giving opportunity of being heard to the dealer, cancel the certificate
of registration held by him and the cancellation shall take effect from the
date of order of cancellation.
(6) Every
dealer whose certificate of registration is cancelled under this section shall
pay in respect of every taxable goods held as stock in trade or as capital
goods on the date of cancellation, an amount equal to the tax that would have
been payable in respect of those goods if the goods were sold at prevailing
market price on that date or the total input tax credit previously claimed in
respect of those goods, whichever is higher.
(7) Every
dealer who applies for cancellation of his registration shall surrender with
his application the certificate of registration granted to him along with the
unused way bills held on the date of such application and the account of utilisation of such way bills, if any, for which no account
has been rendered.
(8) Every
dealer whose certificate of registration is cancelled otherwise than on
application shall surrender the certificate of registration along with the
unused way bills, if any held on the date of such cancellation. the account of utilisation of such way bills and the statutory forms, if
any, for which no account has been rendered, within seven days from the date of
receipt, by him, of the order of cancellation.
(9) If the dealer-
(a) fails,
without sufficient cause, to comply with the provisions of sub‑section
(3) or sub‑section (6); or
(b) fails
to surrender his certificate of registration as required under sub‑section
(7); or
(c) fails
to surrender his registration certificate along with unused way bills and the
statutory declaration forms and the account of utilisation
of such way bills and declaration forms, for which no account has been rendered
under sub‑section (8),
the registering authority may, by an order in writing
and after giving the dealer an opportunity of being heard, direct that the
dealer shall pay, by way of penalty, a sum equal to rupees one hundred for each
day of default subject to a maximum of rupees ten thousand.
(10) The
registering authority shall, at intervals of one month, publish in the
Commercial Tax Gazette such particulars, as may be prescribed, in respect of
every dealer whose certificate of registration has been cancelled under the
provisions of this Act during the intervening period.
(11) The
cancellation of a certificate of registration shall not affect the liability of
any dealer to pay tax for any period till the date of such cancellation which
remains unpaid or is assessed after the said date, notwithstanding that he is
not liable to pay tax under this Act.
32. Amendment
of certificate of registration
(1) If any
dealer registered under this Act-
(a) sells
or disposes of his business or any part thereof or the place of business, or
discontinues his business; or
(b) effects,
or comes to know of, any other change in the ownership of the business, or
changes the name, style, constitution or nature of business, or changes his
place of business or warehouse, or opens a new place of business, or makes any
addition or deletion in the class or classes of goods dealt in or manufactured,
he or any person duly authorized by him shall, within
the prescribed time, inform the registering authority accordingly.
(2) If
under circumstances mentioned in clause (b) of sub‑section (1), a
registered dealer makes an application for amendment of the certificate of
registration, the registering authority may, subject to provisions of sub‑section
(6), make or cause to be made such enquiry as he deems necessary and amend the
certificate of registration of the dealer or reject the application for such
amendment:
PROVIDED that before an application for amendment of
certificate of registration is rejected, an opportunity of being heard shall be
allowed to the dealer.
(3) Notwithstanding
anything contained in sub‑section (2), where the registering authority is
satisfied on his own information that the certificate of registration issued to
a dealer requires amendment with regard to certain particulars specified
therein, he may amend the said certificate after giving the dealer an
opportunity of being heard.
(4) Where
no order either granting or rejecting the application for amendment of the
registration certificate is passed within thirty days from the date of receipt
of such application, it shall be deemed that the amendment as applied for has
been granted and the certificate of registration shall accordingly be amended:
PROVIDED that if the delay in disposal of the
application for amendment of the certificate of registration is attributable to
the lapse on the part of the dealer, the limitation as provided under this sub‑section
shall not apply.
(5) When
a certificate of registration is amended under sub‑section (3) on any of
the events specified in sub‑section (1), such amendment shall take effect
from the date of such event and in any other case of amendment coming under sub‑section
(2), the amendment shall take effect from the date of application.
(6) Notwithstanding
anything contained in sub‑section (1), where any change alters the basic
status of a dealer, such as, conversion of proprietorship concern to
partnership firm or vice versa, dissolution of an existing firm and creation of
a new firm, formation of a firm into a company or vice versa, a fresh
certificate of registration shall be required to be obtained by the dealer.
(7) Where
a dealer fails, without any reasonable cause, to inform the registering
authority the changes as provided under sub‑section (1) within the time
prescribed, he shall be liable to a penalty of rupees one hundred for each day
of default.
33. Periodical
returns and payment of tax
(1) Every
registered dealer shall furnish returns in such form, for such period, by such
dates and to such authority, as may be prescribed:
PROVIDED that the Commissioner may, subject to such
conditions and restrictions as may be prescribed, exempt any such dealer or
class of dealers from furnishing such returns or require any such dealer to
furnish
(a) returns
for such different periods; or
(b) separate
return for each or any branch or place of business inside the State, where such
registered dealer has more than one branch or place of business in the State.
(2) If
the Commissioner has reason to believe that the turnover of sales or the
turnover of purchases of any dealer is likely to exceed or has exceeded the
taxable limit as specified in sub‑section (4) of section 10, he may, by
notice, served in the prescribed manner, require such dealer to furnish return
as if he were a registered dealer, but no tax shall be payable by him unless
his gross turnover exceeds the taxable limit provided under the said sub‑section.
(3) A
registered dealer, whose certificate of registration is cancelled by the
registering authority under section 31, shall furnish a final return in such
form as may be prescribed, within thirty days from the date of order of such
cancellation.
(4) If
any dealer, having furnished returns under sub‑section (1) or sub‑section
(2), discovers any omission or error in any return so furnished, he may file a
revised return before the date on which the return for next tax period becomes
due.
(5) If
any dealer, after furnishing a return under sub‑section (1) or sub‑section
(2), discovers that a higher amount of tax was due than the amount of tax
admitted by him in the original return for any reason, he may voluntarily
disclose the same by filing a revised return for the purpose and pay the higher
amount of tax as due at any time, in the manner provided under section 50:
PROVIDED that no such voluntary disclosure shall be
accepted where the disclosure is made or intended to be made after receipt of
the notice for tax audit under this Act, or as a result of such audit.
(6) Every
dealer required to file return under sub‑section (1) or sub‑section
(2) shall pay the full amount of tax payable according to the return or the
differential tax payable according to the revised return furnished, if any, in
the manner provided under section 50.
(7) Every
return under this section shall be signed and verified
(a) in
case of an individual, by the individual himself, and where the individual is
absent, by any person duly authorised by him in this
behalf;
(b) in the
case of a Hindu Undivided Family, by the Karta;
(c) in the
case of a company or local authority, by the principal officer thereof;
(d) in the
case of a firm, by any partner thereof not being a minor;
(e) in
the case of any other association, by any person competent to act in that behalf.
Explanation: For the purpose of clause (c) of sub‑section
(7), the expression "principal officer" shall have the meaning
assigned to it under clause (35) of section 2 of the Income Tax Act, 1961 (43
of 1961).
(8) Any
return signed by a person who is not authorised under
sub‑section (7) shall not be treated as a return for the purposes of this
Act:
PROVIDED that any amount deposited on the basis of
such return shall not be refunded except where it is established under the
provisions of this Act to be otherwise not payable.
34. Default
in filing of return
(1) Where
a dealer required to file return under sub‑section (1), (2) or (3) of
section 33-
(a) fails
without sufficient cause to pay the amount of tax due as per the return for any
tax period; or
(b) makes
voluntary disclosure under sub‑section (5) of section 33 showing a higher
amount of tax to be due than was shown by him in the original return; or
(c) fails
to furnish return,
such dealer shall
be liable to pay interest in respect of-
(i) the tax, which he fails to pay
according to the return; or
(ii) the difference of the amount of tax
according to the voluntary disclosure; or
(iii) the
tax payable for the period for which he has failed to furnish return; at the
rate of two per centum per month from the date the return for the period was
due to the date of its payment or to the date of order of assessment, whichever
is earlier.
(2) If
a registered dealer, without sufficient cause, fails to pay the amount of tax
due and interest payable thereon along with return or revised return in
accordance with the provisions of sub‑section (1), the Commissioner may,
after giving the dealer a reasonable opportunity of being heard, direct him to
pay in addition to the tax and the interest payable by him, a penalty at the
rate of two per centum per month on the tax and interest so payable, from the
date it had become due to the date of its payment or the order of assessment,
whichever is earlier.
(3) If
a registered dealer or any other dealer required to furnish return under sub‑section
(2) of section 33, without any sufficient cause,
(a) fails
to comply with the requirements under sub‑section (2) or (3) of section
33; or
(b) fails
to furnish, the proof of payment in relation to any voluntary disclosure made
in accordance with sub‑section (5) of section 33; or
(c) fails
to furnish the proof of payment as required under sub‑section (6) of
section 33,
the Commissioner may, after giving the dealer a
reasonable opportunity of being heard, direct him to pay in addition to any
tax, interest and penalty under sub‑sections (1) and (2) payable or paid
by him, a penalty of sum of rupees one hundred per each day of default subject
to a maximum of rupees ten thousand.
(4) The
penalties as provided under this section may be imposed by the Commissioner
notwithstanding the fact that assessment proceedings have not been initiated
against the dealer under section 42 or section 43.
(5) Any
penalty imposed under this section shall be without prejudice to any
prosecution for any offence under this Act.
35. Tax to
be collected by registered dealers
No person who is not a registered dealer shall collect
in respect of any sale of goods by him in the State any amount by way of tax
under this Act, and no registered dealer shall make any such collection except
in accordance with the provisions of this Act and the rules and at any rate in
excess of the rate specified for the purpose by/under this Act.
36. Rounding
off of amount of tax or penalty
The amount of tax or penalty payable or refundable for
any period under the provisions of this Act shall be rounded off to the nearest
rupee where such amount contains a fraction of a rupee being fifty paise or more, and where such fraction is less than fifty paise, it shall be ignored.
37. Rounding
off of tax or penalty for calculation of interest
In calculating the interest payable under section 34,
the amount of tax in respect of which such interest is to be calculated shall
be rounded off to the nearest multiple of one hundred rupees, if such amount
contains a part of rupees one hundred being fifty rupees or more, and if such
part is less than fifty rupees it shall be ignored.
(1) Each
and every return in relation to any tax period furnished by a registered dealer
under section 33, shall be subject to scrutiny by the assessing authority to
verify the correctness of calculation, application of correct rate of tax and
interest, claim of input tax credit made therein and full payment of tax and
interest, payable by the dealer for such period.
(2) If
any mistake is detected as a result of scrutiny made under sub‑section
(1), the assessing authority shall serve a notice in the prescribed form on the
dealer to make payment of the extra amount of tax along with the interest as
per the provisions of this Act, by the date specified in the said notice.
(1) Subject
to provisions of sub‑section (2), the amount of tax due from a registered
dealer or a dealer liable to be registered under this Act shall be assessed in
the manner hereinafter provided, for each tax period or tax periods during
which the dealer is so liable.
(2) If
a registered dealer furnishes the return in respect of any tax period within
the prescribed time and the return so furnished is found to be in order, it
shall be accepted as self assessed subject to adjustment of any arithmetical
error apparent on the face of the said return.
(1) Where
a registered dealer fails to furnish the return in respect of any tax period
within the prescribed time, the assessing authority, if he is satisfied that
provisional assessment is necessary in that case, may proceed to assess the
dealer provisionally for that period, notwithstanding anything contained in
section 42.
(2) The
provisional assessment under sub‑section (1) shall be made on the basis
of past return or past records and, where no such returns or records are
available, on the basis of information received by the assessing authority and
in every such case, the assessing authority shall direct the dealer to deposit
the amount of tax so assessed in such manner and by such date as may be
prescribed.
(3) If
the dealer furnishes return along with evidence showing full payment of the tax
due and the interest and penalty, payable, if any, under section 34 on or
before the date specified under sub‑section (2), the provisional
assessment made under sub‑section (1) shall stand revoked on the date on
which such return is filed by the dealer.
(4) Nothing
contained in this section shall prevent the assessing authority from making
assessment under section 42 and any tax, interest or penalty paid against the
provisional assessment under this section shall be adjusted against tax,
interest or penalty payable on such assessment.
41. Identification
of taxpayers for tax audit
(1) The
Commissioner may select such individual dealers or class of dealers for tax
audit on random basis or on the basis of risk analysis or on the basis of any
other objective criteria, at such intervals or in such audit cycle, as may be
prescribed.
(2) After
identification of individual dealers or class of dealers for tax audit under
sub‑section (1), the Commissioner shall direct that tax audit in respect
of such individual dealers or class of dealers be conducted in accordance with
the audit programme approved by him:
PROVIDED that the Commissioner may direct tax audit in
respect of any individual dealer or class of dealers on out of turn basis or
for more than once in an audit cycle to prevent evasion of tax and ensure
proper tax compliance.
(3) Tax
audit shall ordinarily be conducted in the prescribed manner in the business
premises or office or godown or warehouse or any
other place, where the business is normally carried on by the dealer or stock
in trade or books of account of the business are kept or lodged temporarily or
otherwise.
(4) After
completion of tax audit of any dealer under sub‑section (3), the officer authorised to conduct such audit shall, within seven days
from the date of completion of the audit, submit the audit report, to be called
"Audit Visit Report", to the assessing authority in the prescribed
form along with the statements recorded and documents obtained evidencing
suppression of purchases or sales, or both, erroneous claims of deductions
including input tax credit and evasion of tax, if any, relevant for the purpose
of investigation, assessment or such other purposes.
(1) Where
the tax audit conducted under sub‑section (3) of section 41 results in
the detection of suppression of purchases or sales, or both, erroneous claims
of deductions including input tax credit, evasion of tax or contravention of
any provision of this Act affecting the tax liability of the dealer, the
assessing authority may, notwithstanding the fact that the dealer may have been
assessed under section 39 or section 40, serve on such dealer a notice in the
form and manner prescribed along with a copy of the Audit Visit Report,
requiring him to appear in person or through his authorised
representative on a date and place specified therein and produce or cause to be
produced such books of account and documents relying on which he intends to
rebut the findings and estimated loss of revenue in respect of any tax period
or periods as determined on such audit and incorporated in the Audit Visit
Report.
(2) Where
a notice is issued to a dealer under sub‑section (1), he shall be allowed
time for a period of not less than thirty days for production of relevant books
of account and documents.
(3) If
the dealer fails to appear or cause appearance, or fails to produce or cause
production of the books of account and documents as required under sub‑section
(1), the assessing authority may proceed to complete the assessment to the best
of his judgment basing on the materials available in the Audit Visit Report and
such other materials as may be available, and after causing such enquiry as he
deems necessary.
(4) Where
the dealer to whom a notice is issued under sub‑section (1), produces the
books of account and other documents, the assessing authority may, after
examining all the materials as available with him in the record and those
produced by the dealer and after causing such other enquiry as he deems
necessary, assess the tax due from that dealer accordingly.
(5) Without
prejudice to any penalty or interest that may have been levied under any
provision of this Act, an amount equal to twice the amount of tax assessed
under sub‑section (3) or sub‑section (4) shall be imposed by way of
penalty in respect of any assessment completed under the said sub‑sections.
(6) Notwithstanding
anything contained to the contrary in any provision under this Act, an
assessment under this section shall be completed within a period of six months
from the date of receipt of the Audit Visit Report:
PROVIDED that if, for any reason, the assessment is
not completed within the time specified in this sub‑section, the
Commissioner may, on the merit of each such case, allow such further time not
exceeding six months for completion of the assessment proceeding.
(7) No
order of assessment shall be made under sub‑section (3) or sub‑section
(4) after the expiry of one year from the date of receipt of the Audit Visit
Report.
43. Turnover
escaping assessment
(1) Where,
after a dealer is assessed under section 39, 40 or 42 for any tax period, the
assessing authority, on the basis of any information in his possession, is of
the opinion that the whole or any part of the turnover of the dealer in respect
of such tax period or tax periods has-
(a) escaped assessment, or
(b) been under‑assessed,
or
(c) been assessed at a rate
lower than the rate at which it is assessable;
or that the dealer has been allowed
(i)
wrongly any deduction
from his turnover, or
(ii)
input tax credit, to
which he is not eligible,
the assessing authority may serve a notice on the
dealer in such form and manner as may be prescribed and after giving the dealer
a reasonable opportunity of being heard and after making such enquiry as he
deems necessary, proceed to assess to the best of his judgment the amount of
tax due from the dealer.
(2) If
the assessing authority is satisfied that the escapement is without any
reasonable cause, he may direct the dealer to pay, by way of penalty, a sum
equal to twice the amount of tax additionally assessed under this section.
(3) No
order of assessment shall be made under sub‑section (1) after the expiry
of five years from the end of the tax period or tax periods in respect of which
the tax is assessable.
44. Assessment of dealer who being liable to
pay tax fails to register
(1) If
the assessing authority, on the basis of any information in his possession, is
satisfied that any dealer, who has been liable to pay tax under this Act in
respect of any period, has failed to get himself registered, the assessing
authority shall proceed in such manner as may be prescribed to assess to the
best of his judgment the amount of tax due from the dealer in respect of such
period and all subsequent periods and, in making such assessment, shall give
the dealer reasonable opportunity of being heard, and the assessing authority
may, if he is satisfied that the default is without reasonable cause, direct
the dealer to pay, in addition to the amount of tax so assessed, a penalty
equal to' the amount of tax so assessed.
(2) No
assessment under sub‑section (1) shall be made after the expiry of five
years from the end of the tax period or tax periods to which the assessment
relates.
45. Assessment
of a causal dealer
(1) Every
causal dealer shall be liable to pay tax on all his-
(a) sales,
within the State, of taxable goods purchased or received by him; and
(b) purchases
of taxable goods within the State, which are liable to be taxed under section
12.
(2) A
casual dealer shall furnish to the assessing authority including the officer‑incharge of any check‑post or barrier referred to in
section 74, voluntarily or immediately when called upon to do so by a notice in
the prescribed form, a return of estimated turnover in the form prescribed.
(3) If
a casual dealer does not furnish the return as required under sub‑section
(2) or if the return furnished by him appears to the assessing authority or the
officer‑incharge of the check‑post or
barrier to be incorrect or incomplete, such authority or the officer‑in‑charge
shall, after giving the casual dealer a reasonable opportunity of being heard,
assess him to the best of his judgment.
(4) The
assessing authority or the officer‑in‑charge of the check‑post
or barrier shall, if he is satisfied after making such scrutiny of the accounts
of the casual dealer and such enquiry as he may consider necessary that the
return furnished under sub‑section (2) is correct and complete,
provisionally assess the amount of tax due from him on the basis of such
return.
(5) The
provisional and the final assessment of a casual dealer shall be made in the
manner prescribed.
(6) No
order under sub‑section (3) or (4) shall be passed after the expiry of
six months from the date of notice calling upon the casual dealer to furnish
return is served on him or the date on which such return is voluntarily filed.
In case any offence under this Act for which
proceeding for prosecution has been initiated, the limitation as specified
under sub‑section (7) of section 42, sub‑section (3) of section 43
and sub‑section (2) of section 44 shall not apply.
47. Assessment where proceeding for
prosecution has been initiated
Any assessment made or penalty imposed under section
40, 42, 43 or 44 shall be without prejudice to any prosecution that may have
been initiated for an offence under this Act.
48. Exclusion
of time period for assessment
In computing the period of limitation specified for
assessment or reassessment, as the case may be, the time during which any
assessment or reassessment proceeding remained stayed under the order of a
competent Court shall be excluded.
49. Power
of reassessment in certain cases
(1) Where
any order passed by the assessing authority in respect of a dealer for any
period is found to be erroneous or prejudicial to the interest of revenue
consequent to, or in the light of, any judgment or order of any Court or
Tribunal, which has become final and binding, then, notwithstanding anything
contained in this Act, the assessing authority may proceed to reassess the tax
payable by the dealer in accordance with such judgment or order, at any time
within a period of three years from the date of the judgment or order.
(2) Where
any Court or Tribunal passes an order in appeal or revision to the effect that
any tax assessed under this Act or the Central Sales Tax Act, 1956 (74 of 1956)
should have been assessed under the provision of a law other than that under
which it was assessed, then, in consequence of such order or to give effect to
the finding or direction contained in such order, the turnover or any part
thereof as relates to such assessment may be assessed or reassessed, as the
case may be, to tax at any time within five years from the date of such order,
notwithstanding the applicability of any period of limitation to such
assessment or reassessment under this Act.
50. Payment
and recovery of tax, interest and penalty
(1) Tax
payable under this Act shall be paid in the manner hereinafter provided in this
section at such intervals as may be prescribed.
(2) A
registered dealer furnishing any return under sub‑section (1) of section
33 shall pay into Government Treasury, in such manner and at such intervals as
may be prescribed, the amount of tax due from him for the tax period covered
under the return and, where he furnishes such return after the prescribed date,
shall pay the tax so due along with the amount of interest, penalty, or both, as
payable by him under section 34, and shall furnish a receipt from the Treasury
showing the payment so made.
(3) A
registered dealer furnishing a revised return in accordance with sub‑section
(4) or sub‑section (5) of section 33, which shows that a higher amount of
tax is due than that was paid or payable in accordance with the original
return, shall furnish along with such return a receipt showing payment of the
differential amount of tax payable along with the interest, penalty, or both,
as payable under section 34, in the manner provided in sub‑section (2).
(4) The amount of-
(a) tax
due where returns have been filed without full payment of tax due; or
(b) tax
assessed under section 39, 40, 42, 43, 44 or 45 less the sum already paid in
respect of any tax period, together with interest required to be paid and the
penalty, if any, imposed under section 42, 43 or section 44; or
(c) penalty
imposed under any provision of this Act not covered by clause (b); or
(d) any
other dues under this Act, shall be paid by the dealer in the manner provided
under sub‑section (2) within thirty days from the date of service of the
notice issued by the assessing authority for the purpose.
(5) Where
a dealer fails to make payment of the tax assessed, interest payable or penalty
imposed or any other amount due from him under this Act within thirty days of
the date of service of the notice of demand, the assessing authority shall,
after giving the dealer a reasonable opportunity of being heard, direct that
such dealer shall pay, in addition to the amount due for payment, by way of
penalty, a sum equal to two per centum of such amount of tax, interest, penalty
or any other amount due, for every month for which payment has been delayed by
him after the date on which such amount was due to be paid:
PROVIDED that where any appeal under section 77 or 78
or revision under section 79 has been filed,-
(i) such penalty shall be payable from the
date so specified on the amount ultimately found due from the dealer; and
(ii) if
the tax or penalty, if any, is enhanced in such appeal or revision, such
penalty on the excess amount shall be payable from the date by which the dealer
is required to pay such excess amount.
(6) When
a dealer is in default in making the payment of any amount payable by him under
sub‑sections (4) and (5) he shall be liable to pay simple interest on
such amount at the rate of two per centum per month with effect from the date
of such default till the payment of the amount.
(7) All
amounts that remain unpaid after the due date of payment in pursuance of the
notice issued under sub‑section (4) and sub‑section (5) shall be
recoverable as arrears of public demand or in accordance with the provisions
contained in Schedule E.
(8) Where,
in pursuance of sub‑section (7), any proceedings for the recovery, as
arrears of public demand or in accordance with the provisions of Schedule E, of
any tax, interest or penalty or part thereof or any other amount remaining
unpaid, have been commenced and the amount of tax, interest, penalty or any
other amount is subsequently enhanced or reduced as a result of any assessment
made or order passed in appeal under section 77 or 78 or revision under section
79 or rectification under section 81, the assessing authority may, in such
manner and within such period as may be prescribed, inform accordingly the
dealer and the authority by whom or under whose order the recovery is to be
made and, thereupon, such proceedings may be continued as if the amount of tax,
interest, penalty or any other amount as enhanced or reduced, had been
substituted for the tax, interest, penalty or any other amount, as the case may
be, which was to be recovered under sub‑section (7).
(1) Notwithstanding
anything contained in section 50 or any law or contract to the contrary, the
assessing authority may, at any time or from time to time, by notice in
writing, a copy of which shall be forwarded to the dealer at his last address
known, require
(a) any
person from whom any money is due or may become due to a dealer, who has failed
to comply with a notice served under sub‑section (4) or sub‑section
(5) of section 50 or has failed to pay any interest due from him under this
Act; or
(b) any
person who holds or may subsequently hold any money for or on account of such
dealer, to pay into Government Treasury in the manner specified in the notice
issued under this sub‑section either forthwith or upon the money becoming
due or being held, or at or within the time specified in the notice not being
before the money becomes due or is held, so much of the money as is sufficient
to pay the amount of tax due from the dealer with the interest or penalty or
both, as the case may be, as payable under this Act or the whole of the money
when it is equal to or less than that amount.
(2) The
assessing authority may, at any time or from time to time, amend or revoke any
notice issued under sub‑section (1) or extend the time for making the
payment in pursuance of such notice.
(3) Any
person making any payment in compliance with a notice issued under sub‑section
(1) shall be deemed to have made the payment under the authority of the dealer
and the receipt from the Government Treasury shall constitute a good and
sufficient discharge of the liability of such person to the dealer to the
extent of the amount specified in the receipt.
(4) Any
person discharging liability to the dealer after service on him of the notice
issued under sub‑section (1) shall, if the liability is discharged in any
manner other than that required under the said notice, be personally liable to
the Government to the extent of the liability so discharged or to the extent of
the liability of the dealer for the tax due under this Act along with the
interest or penalty or both, as payable, whichever is less.
(5) Where
a person on whom a notice is served under sub‑section (1) proves to the
satisfaction of the assessing authority that the money demanded or any part
thereof was not due to the dealer or that he did not hold any money for or on
account of the dealer, at the time the notice was served on him, or that the
money demanded or any part thereof is not likely to become due to, or to be
held for or on account of, the dealer, nothing contained in this section shall
be deemed to require such person to pay into Government Treasury any such money
or part thereof, as the case may be.
(6) Any
amount of money which a person is required to pay under sub‑section (1)
or for which he is personally liable to the Government under sub‑section
(4) shall, if it remains unpaid, be recoverable in the same manner as provided
under sub‑section (7) of section 50:
PROVIDED that nothing in this section shall operate to
affect any action taken or that may have been taken or prevent any action that
may be or is being taken under section 50 for recovery from the dealer the
amount due from him.
52. Unauthorised and
excess collection of tax by dealer
(1) Any
person who,
(a) not being a registered
dealer, collects any sum by way of tax; or
(b) being
a registered dealer, collects any amount by way of tax in excess of the tax
payable by him,
shall be liable to pay in addition to the tax for
which he may be liable, a penalty equal to twice the sum so collected by way of
tax.
(2) If
the assessing authority in the course of any proceeding under this Act or
otherwise has reason to believe that any person has become liable to a penalty
under sub‑section (1), he shall serve on the person a notice in the
prescribed form requiring him to show cause as to why a penalty as provided
under sub‑section (1) shall not be imposed on him.
(3) On
receipt of the reply, if any, to the notice served under sub‑section (2),
the assessing authority shall, after such enquiry as he may consider necessary,
make such order as he deems fit.
(4)
(a) The amount of tax
collected by any person or dealer in contravention of section 35 shall be
forfeited to the Government by an order of the assessing authority:
PROVIDED that no such order shall be made by the
assessing authority without giving the person or, as the case may be, the
dealer concerned an opportunity of being heard.
(b) When
any such order of forfeiture is made, the assessing authority shall publish a
notice in the prescribed manner specifying the names and addresses of the
persons from whom tax was collected in contravention of section 35 and other
details, if any, relating thereto as may be prescribed and giving such persons
an opportunity to file their claims, accompanied by such documentary or other evidence
as each such person may furnish to establish his claim, within sixty days from
the date of publication of the notice, for refund of the amount collected from
them.
(c) If,
on receipt of any such claim, the assessing authority is satisfied that the whole
or any part of the amount of such claim is refundable, he shall refund such
amount to the person concerned within one month after the amount is collected
or recovered from the person or dealer who collected the amount in
contravention of section 35.
(1) The
Orissa Consumer Welfare Fund established under the Orissa Sales Tax Act, 1947 (Orissa
Act 14 of 1947) shall be deemed to have been established under this Act.
(2) There
shall be credited to the Fund, in such manner as may be prescribed all amounts
forfeited under sub‑section (4) of section 52 and all amounts of penalty
paid pursuant to that section, including interest recovered, if any, on such
amounts (except any amount refunded under clause (c) of sub‑section (4)
of the said section) and excluding the expenses of collection and recovery as
determined by the Government.
(3) The
moneys credited to the Fund shall be utilised by the
Government for the welfare of the consumers in accordance with such rules and
the accounts and other relevant records in relation to the Fund shall be
maintained in such manner, as may be prescribed.
54. Deduction of tax at source from payment to
works contractor
(1) Notwithstanding
anything contained in section 50 or any other law or contract to the contrary,
any person responsible for making payment of any sum to any contractor
(hereinafter referred to in this section as deducting authority) for carrying
out any works contract, which involves transfer of property in goods, in
pursuance of a contract between the contractor and
(a) the Central Government
or any State Government, or
(b) any local authority, or
(c) any authority or
corporation established by or under a statute, or
(d) any
company incorporated under the Companies Act, 1956 (1 of 1956) including any
State or Central Government undertaking, or
(e) any co‑operative
society, or any other association registered under the Societies Registration
Act, 1860 (21 of 1860),
shall, at the time of credit of such sum to the
account of the contractor or at the time of payment thereof in cash or by issue
of a cheque or draft or any other mode, whichever is
earlier, deduct, subject to the certificate, if any, produced by the contractor
in pursuance of sub‑section (5), an amount towards tax equal to four per
centum of such sum in respect of the works contract, if the value of works
contract exceeds rupees fifty thousand.
(2) While
making deduction as referred to in sub‑section (1), the deducting
authority shall grant a certificate to the contractor in the form prescribed
and send a copy thereof to the assessing authority within whose jurisdiction
the works contract is executed within a period of thirty days of such
deduction:
PROVIDED that where the tax is deducted from a
registered dealer, the assessing authority who receives the certificate shall
forward the same, along with the payment received, to the assessing authority
under whose jurisdiction the dealer is registered in the manner prescribed.
(3) The
amount deducted from the bills or invoices shall be deposited into a Government
Treasury within one week from the date of deduction in such form or challan as may be prescribed.
(4) Such
deposit into Government Treasury shall be adjusted by the concerned assessing
authority towards the tax liability of the contractor and shall constitute a
good and sufficient discharge of liability of the deducting authority to the
contractor to the extent of the amount deposited.
(5)
(a) Where, on an
application being made by the contractor in this behalf, the assessing
authority is satisfied that any works contract of the nature referred to in sub‑section
(1) involves both transfer of property in goods and labour
or services, or involves only labour or services and,
accordingly, justifies deduction of tax on a part of the sum in respect of the
works contract or, as the case may be, justifies no deduction of tax, he shall,
after giving the contractor a reasonable opportunity of being heard, grant him
such certificate as may be appropriate, in the manner prescribed:
PROVIDED that nothing in the said certificate shall
affect the assessment of the tax liability of the contractor under this Act:
PROVIDED FURTHER that where the assessing authority,
in consideration of the facts and circumstances of the case, is of the opinion
that such certificate of no deduction or deduction of tax on a part of the sum
as claimed is not justified he may, after allowing the dealer a reasonable
opportunity of being heard, refuse to issue such certificate.
(b) Where
such a certificate is produced by a contractor before the deducting authority,
until such certificate is cancelled by the assessing authority, the deducting
authority shall either make no deduction of tax or make the deduction of the
tax, as the case may be, in accordance with the said certificate.
(6) If
any person contravenes the provision of sub‑section (1), (2) or (3) or of
clause (b) of sub‑section (5), the assessing authority shall, after
giving him an opportunity of being heard, by an order in writing, impose on
such person a penalty equal to twice the amount required to be deducted and
deposited by him into Government Treasury.
Explanation: Nothing in sub‑section (5) or any
other provision of this section shall be construed as to authorise
deduction of any amount towards tax on the value of any property in goods
transferred in the course of inter‑State sales, sales outside the State
or sales in the course of import.
(7) Where
any certificate issued under sub‑section (5) is found to have been
obtained on incorrect or fraudulent representation of facts, the assessing
authority shall cancel the certificate with direction to the deducting
authority to recover the tax, not deducted on the strength of such certificate,
from the subsequent payments due to the works contractor:
PROVIDED that no such order of cancellation shall be
issued without giving a reasonable opportunity of being heard to the works
contractor.
55. Tax to
be first charge on property
Notwithstanding anything to the contrary contained in
any law for the time being in force, any amount of tax, including interest or
penalty or both, if any, payable by a dealer or any other person under this
Act, shall be a first charge on the property of the dealer or such person, as
the case may be.
56. Period
of limitation for recovery of tax
Notwithstanding anything contained in any law for the
time being in force, no proceedings for recovery of any amount under sub‑section
(7) of section 50 or under sub‑section (6) of section 51 shall be
initiated after the expiry of five years from the date the amount becomes due
for payment:
PROVIDED that when an appeal or revision has been
filed, the period of limitation shall run from the date on which the amount due
is finally determined.
(1) Subject to other provisions of this Act and
the rules, the assessing authority shall refund to a dealer, within a period of
sixty days of the date of receipt of such order giving rise to such refund, the
amount of tax, including interest or penalty or both, if any, paid by such
dealer in excess of the amount due from him, through refund adjustment or
through refund voucher:
PROVIDED that the assessing authority shall first adjust
such excess amount towards the recovery of any amount due in respect of which a
notice under sub‑section (4) of section 50 has been issued, or any amount
due for any period covered by a return but not paid and, thereafter, refund
only the balance, if any.
(2) Where
any refund is due to any dealer according to return furnished by him for any
period, such refund may provisionally be adjusted by him against the tax due or
tax payable, as per the returns filed under section 33, for any subsequent
period:
PROVIDED that the excess input tax credit for any tax
period shall not be carried forward beyond a period of twenty four months from
the close of the year to which that tax period relates for adjustment against
the tax due for subsequent period or periods, except when the dealer exercises
option in writing for further carry over:
PROVIDED FURTHER that the
amount of tax, including interest or penalty or both, if any, due from, and
payable by, the dealer on the date of such adjustment shall first be deducted
from the amount of such refund before adjustment.
(3) No
claim for refund of any tax, including interest or penalty or both, if any,
paid for any tax period or periods under this Act shall be allowed in any case
where there is an order for reassessment for such period until such
reassessment is completed.
58. Refund
of tax under special circumstances
(1)
(a) Where any return filed
under this Act shows any amount to be refundable to a dealer on account of
sales referred to in clauses (b), (c) and (d) of section 18, the dealer may
make an application to the assessing authority for refund of that amount in the
manner and form as may be prescribed.
(b) As
soon as may be, on receipt of the application for such refund, the assessing
authority shall direct a tax audit under sub‑section (2) of section 41 of
the transactions pertaining to such refund as covered under the return referred
to in clause (a) which shall be completed within a period of one month from the
date of issue of such direction, to establish the correctness of such claim:
PROVIDED that if there is any delay in completing the
audit under this clause due to non‑co‑operation of the dealer or
non‑production of evidence as may be required to be furnished in support
of the claim of refund or any other lapse on the part of the dealer, the period
of such delay shall be excluded while computing the period of limitation and
such period shall not be reckoned for grant of interest, if any, admissible
under section 59:
PROVIDED FURTHER that if such lapse on the part of the
dealer persists without any valid reason, the assessing authority may reject
the application for such refund after giving the dealer an opportunity of being
heard.
(c) Where,
on assessment based on tax audit under clause (b), the amount of refund claimed
is found to be inadmissible or more than what is admissible, then the claim of
refund of excess amount shall be disallowed and if, in consequence thereof, any
amount is found due from the dealer, he shall be liable to pay interest at the
rate of two per centum per month on that amount from the date of filing of the
return giving rise to the refund till the date of the assessment.
(d) The
dealer may, by application made in this behalf, exercise option for grant of
provisional refund pending audit, investigation and assessment.
(e) Subject
to the provisions of clauses (b) and (c), the assessing authority may require a
dealer exercising option under clause (d) to furnish Bank guarantee to the
satisfaction of the assessing authority for an amount equal to the amount of
refund claimed.
(f) On
receipt of such Bank guarantee, the assessing authority shall, subject to the
procedure prescribed, grant the dealer a provisional refund of such amount as
may be determined to be refundable.
(g) Where
a provisional refund has been granted, the assessing authority may, after an
audit under section 41 and assessment under section 42 when so required as a
result of such audit, grant final refund, and the excess amount, if any,
allowed by provisional refund may be recovered as if it is a tax payable under
this Act and, thereafter, release the Bank guarantee furnished by the dealer at the time of grant of provisional refund, in the manner
prescribed:
PROVIDED that the Bank
guarantee shall be forfeited, if-
(i) the dealer is found to have made an incorrect claim of
refund against which payment has already been made; or
(ii) the
dealer fails to produce evidence in support of the claim of refund; or
(iii) the
refund claim is reduced by any reason whatsoever and the dealer fails to pay
the excess amount of refund provisionally allowed, to such extent and in such
manner as maybe prescribed, and, where the refund claim is reduced, the dealer
shall be liable to pay interest at the rate of two per centum on the excess
amount of refund so granted from the date of such grant to the date of its
recovery.
(h) Where
any refund claimed is found to be admissible under this sub‑section, it shall
be granted within a period of ninety days from the date of application for such
refund.
(2)
(a) Any foreign diplomatic
mission or consulate in India or the United Nations or any other similar
international body, as may be notified by the Government, shall be entitled to
refund of tax paid for goods purchased in the State and all such refunds shall
be subject to the conditions and restrictions as may be prescribed.
(b) Any
person, who is authorised by the body referred in
clause (a), entitled to refund there under, may apply to the assessing
authority for such refund in the manner and within the time as may be
prescribed.
(3)
(a) Subject to the
provisions of section 31, where a registered dealer closes down or discontinues
his business and the net tax payable as a result of such closure or
discontinuance of business, after taking into account the closing stock, is a
negative value, the dealer shall make an application for refund to the
assessing authority in such form and within such time as may be prescribed.
(b) Any
refund covered under clause (a) shall be granted in such manner and subject to
such conditions and restrictions as may be prescribed.
(4)
(a) Where any excess input
tax credit for a tax period is carried forward for adjustment against the tax
due for subsequent tax period or periods and such credit or part thereof
remains unadjusted even after a period of twenty four months from the close of
the year to which the tax period for which the return showing the excess input
tax credit relates, the dealer may opt to further carry forward the credit till
final adjustment or may claim refund of the amount of such excess credit
remaining unadjusted.
(b) Where
a dealer opts for refund under clause (a), he shall make an application to that
effect to the assessing authority within such time and in such manner as may be
prescribed.
(c) Any
refund covered under this sub‑section shall be granted in such manner and
subject to such conditions and restrictions as may be prescribed.
59. Interest
on amount refunded
(1)
(a) A registered dealer
entitled to refund in pursuance of any order under this Act including an order
of assessment under sections 40, 42 and 43 or in pursuance of any order of a
Court shall, in addition to the refund, be paid in the prescribed manner simple
interest at the rate of eight per centum per annum for the period commencing
immediately after the expiry of sixty days of receipt of the order till the
date on which the refund is granted:
PROVIDED that interest as applicable under this
section shall be admissible after the expiry of the period of ninety days from
the date of receipt of the application for grant of refund under sub‑section
(1) of section 58 till the date of its sanction.
(b) The
interest payable under clause (a) shall be calculated on the amount of refund
as due after deducting there from any tax, interest, penalty or any other dues
payable by the dealer under this Act.
(c) If, as
a result of any order passed under t his Act, the amount of such refund is enhanced
or reduced, such interest shall be enhanced or reduced accordingly, and where
the interest is reduced, the excess amount of interest granted, if any, shall
be recovered as if it is an arrear of tax under this Act.
(2) Where,
as a result of any final order, the amount of tax including penalty, if any,
is-
(a) found
to be not due or not defaulted; the interest paid, if any, on that account
shall be refunded; or
(b) reduced,
the interest payable on that account shall be calculated accordingly and the
excess amount of interest paid, if any, shall be refunded:
PROVIDED that where any Amount of tax payable is
enhanced by any such final order, interest shall be payable on the amount by
which the tax is enhanced after the expiry of a period of three months from the
date of the order:
PROVIDED FURTHER that where the realisation
of any amount remains stayed by the order of any Court or authority competent
under this Act and such order is subsequently vacated, interest shall be
payable also for any period during which such order remained in operation.
(3) If,
as a result of an appeal or revision, any change becomes necessary in the
assessment order, and the appellate authority or the revision authority directs
the assessing authority to amend the assessment order accordingly and,
thereupon, the amount paid in excess, if any, shall be refunded to him without
interest.
60. Power
to withhold refund in certain cases
(1) Where
any order giving rise to a refund is the subject matter of an appeal or further
proceeding, or where any other proceeding under this Act is pending, and the
Commissioner is of the opinion that the grant of such refund is likely to
adversely affect the revenue and that it may not be possible to recover the
amount later, the Commissioner may withhold the refund till the final order is
passed in such appeal or proceeding.
(2) Where
a refund is withheld under sub‑section (1), the dealer shall be entitled
to interest as provided under sub‑section (1) of section 59, if he
becomes entitled to the refund as a result of the appeal or further proceeding
or, as the case may be, any other proceeding, under this Act.
61. Maintenance
of accounts and records, etc.
(1) Every
registered dealer or a dealer to whom a notice has been served to furnish
return under sub‑section (2) of section 33 shall maintain, in such form
as may be prescribed, a true and up to date account of the value of goods
purchased or manufactured and sold by him or goods held by him in stock.
(2) Every
registered dealer shall keep, at his place of business as recorded in the
certificate of registration, all accounts, registers and documents maintained
in the course of business:
PROVIDED that if any such dealer has established
branch offices of the business at different places of the State other than the
principal place of his business, the relevant accounts, registers and documents
in respect of each such branch shall be kept by him at the concerned branch.
(3) If
the Commissioner is of the opinion that the accounts maintained by the dealer
or class of dealers are not sufficient for verification of the returns referred
to in sub‑section (1) of section 33 or that the assessment cannot be made
on the basis thereof, he may require such dealer or class of dealers to keep
such accounts, in such form and in such manner as he may, subject to rules,
direct.
(4) If
the Commissioner is satisfied that dealers of any class are not in a position
to maintain accounts in accordance with the provisions of sub‑section
(1), he may, for reasons to be recorded in writing, exempt such class of
dealers from maintaining such accounts.
(5) If
a dealer fails to make available the books of account as specified under sub‑section
(1) at his principal place of business or the branch office, as the case may
be, to any officer appointed under section 3 to assist the Commissioner for
inspection other than audit, the Commissioner may impose on such dealer a
penalty of rupees five hundred, after giving him an opportunity of being heard.
(1) Every
registered dealer making a taxable sale to another registered dealer shall
provide that purchaser, at the time of sale, with a tax invoice containing such
particulars in such manner as may be prescribed and retain a copy thereof:
PROVIDED that-
(i) a tax invoice shall not be issued by a registered dealer to
a retailer registered under this Act who is paying turnover tax under section
16; and
(ii) not
more than one tax invoice shall be issued for any taxable sale.
(2) Except
when tax invoice is issued under sub‑section (1), if a registered dealer
sells any goods exceeding such amount in value as may be prescribed, in any
single transaction to any person, he shall issue to the purchaser a retail
invoice containing such particulars in such manner as may be prescribed and
retain a copy thereof.
(3) Tax
invoice shall have both original and counterfoil of which the original shall be
issued to the purchaser or the person taking delivery of the goods, as the case
may be, and the counterfoil shall be retained by the selling dealer.
(4) Retail
invoice shall have original and counterfoil of which the original shall be
issued to the purchaser and the counterfoil shall be retained by the selling
dealer.
(5) Every
dealer as referred to in sub‑section (1) shall preserve the books of
account including tax invoice and retail invoice until the expiry of five years
after the end of the year to which they relate or for such further period as
may be prescribed, or until the assessment reaches its finality, whichever is
later:
PROVIDED that where such dealer is a party to any
appeal or revision under this Act, the person shall retain, until the appeal or
revision is finally disposed of, every record and accounts that pertain to the
subject matter of the appeal or revision.
(6) If
a registered dealer fails, without any reasonable cause, to issue tax invoice
or retail invoice, as the case may be, in accordance with the provisions of sub‑section
(1) or sub‑section (2), the Commissioner may, after giving an opportunity
of being heard, direct the dealer to pay, by way of penalty, a sum of rupees
one hundred or twice the amount of tax due in that invoice, whichever is
higher, for each occasion of such failure.
(7) Where
any tax invoice or retail invoice issued is found to be incorrect or false, the
selling dealer shall be liable to pay the tax as passed on the purchaser on the
strength of such invoice with a penalty equal to twice the amount of such tax.
(1) Every
dealer required under this Act to keep or maintain records, may retain them in
the form of electronic records for the period specified in sub‑section
(5) of section 62.
(2) The
Commissioner may, for the purposes of sub‑section (1), establish an
electronic data processing system at the head quarters level and at any other
level including the check‑gates, as maybe prescribed, for implementing
the provisions of this Act and the rules.
(3) For
the smooth functioning of the system referred to in sub‑section (2) and
effective regulation of the interactions between the dealers, authorities
appointed under this Act and the Government Treasury, the Commissioner may issue
appropriate instruction, from time to time.
(4) Subject
to the procedure as may be prescribed, a dealer or a person may issue computer
generated tax invoice or retail invoice containing the required particulars.
64. Requirement
to provide document and information
Notwithstanding anything to the contrary in this Act,
the Commissioner may, for any purpose related to the administration or
enforcement of the provisions of this Act, by notice, require any person to
furnish to the Commissioner, within such reasonable time as may be specified in
the notice,
(a) any
information or additional information including a return under this Act, or
(b)
any document including electronic records.
65. Accounts
to be audited in certain cases
(1) If,
in respect of any particular year, the gross turnover of a dealer exceeds
rupees forty lakh or any other amount as the
Commissioner may specify by notification in the Commercial Tax Gazette, then
such dealer shall get his accounts in respect of such year audited by an
Accountant within a period of six months from the date of expiry of that year
and obtain within that period a report of such audit in the prescribed form
containing the prescribed particulars duly signed and verified by such
Accountant and, in every such case, a true copy of such report shall be
furnished by such dealer to the Commissioner by the end of the month following
the expiry of the said period of six months.
Explanation: The expression "Accountant"
means a Chartered Accountant within the meaning of the Chartered Accountants
Act, 1949 (38 of 1949) or a Cost Accountant within the meaning of the Cost and
Works Accountants Act, 1959 (23 of 1959) and includes a person who is entitled
to be appointed to act as an auditor of companies under sub‑section (2)
of section 226 of the Companies Act, 1456 (1 of 1956).
(2) If
any dealer liable to get his accounts audited under sub‑section (1) fails
to furnish a true copy of such report within the time specified in sub‑section
(1), the Commissioner shall, after giving the dealer a reasonable opportunity
of being heard, impose on him a penalty of rupees one hundred per each day of
default.
66. Dealer
to declare the name of manager, etc. of business
(1) Every
dealer, liable to pay tax, shall furnish a declaration at the time of
registration or at such other time in any case, and in such manner, as may be
prescribed, stating the name of the person or persons who shall be deemed to be
manager or managers of the business of such dealer for the purposes of this Act
and such declaration shall be subject to revision in the prescribed manner when
there is any change of manager or managers of such business:
PROVIDED that the declaration furnished under this sub‑section
shall also contain the name and address, with designation, of such other
persons who are authorised to receive notice and
other documents under this Act in relation to the business and when any notice
is served on any such person it shall be binding on the dealer.
67. Liability
in case of transfer of business
(1) Where
a dealer liable to pay tax under this Act, transfers his business in whole or
in part, by sale, lease or license, hire or in any other manner whatsoever, the
dealer and the person to whom the business is so transferred shall jointly and
severally be liable to pay tax, including any interest and penalty, due from
the dealer up to the time of such transfer, whether such tax including interest
and penalty has been determined before or after such transfer.
(2) Where
the transferee of a business referred to in sub‑section (1) carries on
such business either in his own name or in some other name, he shall be liable
to pay tax on the sale of goods effected by him with effect from the date of
such transfer, and shall, if he is an existing registered dealer, apply within
the prescribed time for amendment of his certificate of registration.
68. Liability
in case of company under liquidation
(1) Every
person-
(a) who is
liquidator of any company liable for any dues under this Act which is being
wound up, whether under the orders of a Court or otherwise; or
(b) who
has been appointed as the receiver of any assets of a company liable for any
dues under this Act (hereinafter referred to as liquidator),
shall, within thirty days after he has become such
liquidator, intimate the fact of his appointment as such to the Commissioner.
(2) The
Commissioner shall, after making such inquiries or calling for such information
as he may deem necessary, notify to the liquidator within three months from the
date on which he received the intimation of the appointment of the liquidator,
the amount which, in the opinion of the Commissioner, would be sufficient to
discharge the liability of the company for any tax including interest and
penalty, if any, which is then, or is likely thereafter to become, payable by
the company.
(3) The
liquidator shall not part with any of the assets of the company or the
properties in his hand, until he has been notified by the Commissioner under
sub‑section (2), on being so notified, he sets aside an amount equal to
the amount notified:
PROVIDED that nothing contained in this sub‑section
shall debar the liquidator from parting with such assets or properties in
compliance with any order of a Court or for the purpose of payment of tax,
interest and penalty, if any, payable by the company under this Act or for
meeting such costs and expenses of the winding up of the company as are in the
opinion of the Commissioner reasonable.
(4) If
the liquidator fails to intimate in accordance with sub‑section (1) or
fails to set aside the amount as notified by the Commissioner under sub‑section
(3) or parts with any assets of the company or the properties in his hand in
contravention of the provisions of sub‑section (3), he shall be
personally liable for the payment of tax including interest and penalty, if
any, which the company would be liable to pay under this Act:
PROVIDED that where the amount of tax including interest
and penalty, if any, payable by the company is notified under sub‑section
(2), the personal liability of the liquidator under this sub‑section
shall be to the extent of such amount.
(5) Where
there are more than one liquidator, the obligations and liabilities attached to
the liquidator under this section shall be attached to all the liquidators
jointly and severally.
(6) When
any private company is wound up and any tax including interest and penalty, if
any, determined under this Act on the company for any period, whether before or
in the course of or after its liquidation, cannot be recovered, then every
person who was a director of the private company, except the Government nominee
directors, if any, at any time during the period for which the tax including
interest and penalty is due, shall be jointly and severally liable for payment
of such dues, if any, unless he proves to the satisfaction of the Commissioner
that non‑recovery cannot be attributed to any willful neglect,
misfeasance or breach of duty on his part in relation to the affairs of the
company.
(7) The
provisions of this section shall have effect notwithstanding anything to the
contrary in any other law for the time being in force.
(8) For
the purposes of this section, the expression "company" and
"private company" shall have the meaning respectively assigned to
them under clauses (i) and (ii) of sub‑section
(1) of section 3 of the Companies Act, 1956 (1 of 1956).
69. Liability
of partners of firm to pay tax
Notwithstanding any contract to the contrary, where
any firm is liable to pay any tax including penalty under this Act, the firm
and each of the partners of the firm shall be jointly and severally liable for
such payment:
PROVIDED that where any such partner retires from the
firm, he shall intimate the date of his retirement to the Commissioner in
writing and shall be liable to pay tax including penalty remaining unpaid at
the time of his retirement and any tax including penalty due up to the date of
his retirement though not assessed on that date:
PROVIDED FURTHER that if no such intimation is given
within fifteen days from the date of retirement, the liability of the partners
under the first proviso shall continue until the date on which the intimation is
received by the Commissioner.
70. Liability
of guardians, trustees, etc.
Where the business in respect of which tax is payable
under this Act is carried on by, or is in charge of any guardian, trustee or
agent of a minor or other incapacitated person on his behalf and for the
benefit of such minor or incapacitated person, the tax including penalty, if
any, shall be levied upon, and recoverable from such guardian, trustee or
agent, as the case may be, in like manner and to the same extent as it would be
assessed upon and recoverable from any such minor or other incapacitated
person, if he were of full age and of sound mind and if he were conducting this
business himself, and all the provisions of this Act shall, so far as may be,
apply accordingly.
(1) Where
a dealer is a firm or an association of persons or a Hindu Undivided Family,
and such firm, association or Family has discontinued business
(a) the
tax payable by such firm, association or family up to the date of such
discontinuance may be assessed as if no such discontinuance had taken place;
and
(b) every
person who was at the time of such discontinuance a partner of such firm or a
member of such association or family, shall, notwithstanding such
discontinuance, be liable jointly and severally for the payment of tax, penalty
and interest, if any, payable by such firm, association or family, whether such
tax has been assessed and penalty imposed prior to or after such
discontinuance,
and, subject to as aforesaid, the provisions of this
Act shall, so far as may be applicable, apply as if every such person or
partner or member were himself a dealer:
PROVIDED that where a partner of a firm liable to pay
such tax including penalty and interest, if any, dies, the provisions contained
in sub‑section (4) shall apply.
(2) Where
a change has occurred in the constitution of a firm or an association of
persons, the partners or members of the firm or association as it existed
before and as it exists after its reconstitution shall, without prejudice to
the provisions of section 69, jointly and severally be liable to pay tax
including penalty due from such firm or association for any period before its
reconstitution.
(3) The
provisions of sub‑section (1) shall apply where the dealer, being a firm
or association of persons, is dissolved or where the dealer, being a Hindu
Undivided Family, has effected partition with respect to the business carried
on by it and, accordingly, references in that sub‑section to
discontinuance shall be construed as reference to dissolution or, as the case
may be, to partition.
(4) Where
a dealer liable to pay tax under this Act dies, then,
(a) if
the business carried on by the dealer is continued after his death by his legal
representative or any other person, he shall be liable to pay tax including
penalty due from the dealer under this Act, whether such tax has been assessed,
penalty imposed and interest levied before his death but has remained unpaid,
or is assessed, imposed and levied after his death; and
(b) if the
business carried on by the dealer is discontinued after his death, his legal
representative shall be liable to pay, out of the estate of the deceased, to
the extent the estate is capable of meeting the charge, the tax including penalty
and interest due from the dealer under this Act, whether such dues have been
determined before his death but has remained unpaid, or is determined after his
death,
and the provisions of this Act shall, so far as may
be, apply to such legal representative or other person as if he were the dealer
himself.
Explanation: For the purpose of this sub‑section,
"legal representative" shall have the same meaning as assigned to it
in clause (11) of section 2 of the Code of Civil Procedure, 1908 (5 of 1908).
(5) Where
a dealer liable to pay tax under this Act is succeeded in the business by any
person in any manner described in clause (a) of sub‑section (4) or sub‑section
(1) of section 67, then such person shall be liable to pay tax on the sales or
purchases of goods made by him on and after the date of succession.
(6)
(a) Where any person sells
or purchases any taxable goods as a commission agent on behalf of his
principal, such commission agent and his principal shall both be jointly and
severally liable to pay tax on the turnover of such sales or purchases, as the
case may be.
(b) Where
the commission agent has sold or purchased any goods on behalf of the principal
and it is shown to the satisfaction of the Commissioner that the tax has been
paid by such commission agent on such goods the principal shall not be liable
to pay the tax again in respect of the same transaction.
(c) Where
a manager or agent of a non‑resident dealer sells or purchases any goods
on behalf of that non‑resident dealer in the State, the non‑resident
dealer and the manager or agent residing in the State shall be jointly and
severally liable to pay tax on the turnover of such sales or purchases, as the
case may be:
PROVIDED that if the non‑resident dealer shows
to the satisfaction of the Commissioner that the tax payable in respect of such
sale or purchase has been paid by the manager or agent residing in the State,
the non‑resident dealer shall not be liable to pay tax in respect of the
same transaction.
(7)
(a) When two or more
companies are to be amalgamated by the order of a Court or of the Central
Government and the order is to take effect from a date earlier to the date of
order and any two or more such companies have sold or purchased any goods to or
from each other in the period commencing on the date from which the order is to
take effect and ending on the date of order, then such transactions of sale or
purchase will be included in the turnover of sales or of purchases, as the case
may be, of the respective companies and will be assessed to tax accordingly.
(b) Notwithstanding
anything contained in the said order, for the‑purposes of this Act, the
said two or more companies shall be treated as distinct companies and shall
also be treated as such for all periods up to the date of the said order, and
the registration certificate of the company, which merged, shall be cancelled
with effect from the date of the said order.
Explanation: Words and expressions used in this sub‑section,
but not defined, shall have the respective meanings as assigned to them in
Companies Act, 1956 (1 of 1956).
LIABILITY TO PRODUCE ACCOUNTS AND SUPPLY OF
INFORMATION
72. Survey
of unregistered dealers
(1) With
a view to identifying dealers who are liable to pay tax under this Act, but
have remained unregistered, the Commissioner shall from time to time cause
survey of unregistered dealers to be undertaken.
(2) For
the purpose of such survey, the Commissioner may
(a) by
general or special notice, require any dealer or class of dealers to furnish
the names, addresses and such other particulars as he may find necessary
relating to the persons and dealers who have purchased any goods from or sold
any goods such dealer or class of dealers during any given period;
(b) call for details and particulars regarding the services
provided by public utilities or any person which, in his opinion, are relevant
and useful and cause the results of the survey to be published, from time to
time, in any manner as he deems fit; and
(c) enter any
place where a person is engaged in business, but is not registered or has not
applied for grant of certificate of registration under this Act, whether such
place is the principal place of business or not and require any person, whether
the owner of the business or not, including any employee or any other person
who at the time and place be attending in any manner to, or helping in, the
business-
(i) to afford him the necessary facility to inspect such books
of account or other documents as the
Commissioner may require from him and which he may be maintaining in course of
business at such place, and
(ii) to
furnish such information as he may require as to any matter which according to
him is useful for, or relevant to, any proceeding under this Act.
Explanation: For the purposes of this clause, a place where the
person is engaged in business shall also include any other place in which the
person engaged in business or the employee or other person attending to or
helping in the business states that any of the books of account or other
documents or any part of the cash, stock or other valuable articles or things
relating to the business are kept or are reasonably believed to have been kept.
(3) The
Commissioner may enter the place where the person is carrying on the business
only during the hours at which such place of business is open for business and
after sunrise and before sunset, and make or cause to be made extracts or
copies from books of account and other documents inspected by him, make an inventory
of any cash, stock or other valuable articles or things checked or verified by
him, take samples of goods available at the time of inspection and record the
statement of any such person which, according to him, may be useful for, or
relevant to, any proceeding under this Act.
(4) The
Commissioner while exercising powers under this section shall, on no account,
remove or cause to be removed from the place where he has entered any books of
account, other documents, cash, stock or other valuable articles or things
without giving receipt thereof.
73. Production and inspection of accounts and
search of premises
(1) The
Commissioner may, subject to such conditions as may be prescribed, require any
dealer or any other person to
(a) produce
before him such books of account, registers and documents;
(b) furnish
such information relating to the stock of goods or purchases, sales or
deliveries of goods or any other information relating to his business as may be
deemed necessary for the purpose of this Act;
(c) allow
access to the electronic records, if maintained by the dealer.
(2) All
books of account, registers and documents relating to the stock of goods,
purchases, sales or deliveries of goods by any dealer and all goods and cash
kept in any place of business or warehouse, if any, by him or at any other
place for and on behalf of 'him shall at all reasonable times be open to
inspection by the Commissioner, and the Commissioner may take or cause to be
taken such copies or extracts of the said books of account, registers or
documents and such inventory of the goods found along with samples of such
goods, as may be necessary for the purposes of this Act.
(3) Where
the Commissioner, upon information in his possession or otherwise, is of the
opinion that
(a) any
person, to whom a notice under this Act was issued to produce or cause to be
produced any books of account or other documents, has failed to produce or
cause to be produced such books of account or other documents as required by or
under such notice; or
(b) any
person, to whom a notice as aforesaid has been or may be issued, may not
produce or cause to be produced any books of account or other documents
considered to be useful for, or relevant to, any proceeding under this Act; or
(c) books
of account, registers or documents of any dealer may be destroyed, mutilated,
altered, falsified or secreted or any sales by that dealer have been or may be
suppressed, or any goods have not been or may not be accounted for in the books
of account, registers or other documents required to be maintained under this
Act, with a view to evading or attempting to evade payment of tax due under
this Act,
the Commissioner or any other person appointed under
section 3 if so authorised by the Commissioner may
(i) inspect or survey the place of business of a dealer or any
other place where it is believed by the Commissioner or the person so authorised that business is being carried on or accounts
and documents are being kept by such dealer;
(ii) direct
such dealer to produce accounts, registers and documents relating to his
business activities for examination;
(iii) inspect
the goods in the possession of the dealer or in the possession of anybody else
on behalf of such dealer, wherever such goods are placed;
(iv) make search
of such places including the search of the person found there, where
concealment of facts relating to the business is suspected;
(v) break
open the door of any premises or break open any almirah,
box, receptacle in which any goods, accounts, registers or documents of the
dealer are expected to be concealed, where access to such premises, almirah, box or receptacle is denied;
(vi) record
the statement of the dealer or his manager, agent or servant or take extracts
from the record and put identification marks on accounts, registers or
documents and on any door, almirah, box or
receptacle.
Explanation: The goods, accounts, registers or
documents, which are found at any place of business or any other place, of a
dealer shall be deemed to belong to the dealer, unless the contrary is proved
by him.
(4) Notwithstanding
anything contained in sub‑section (3), the Commissioner or any officer
appointed under section 3 if so authorised by the
Commissioner may, without prior notice, undertake inspection of the place of
business of a dealer or any other place where it is believed that the business
is being carried on or accounts are being kept by such dealer and take such
other action as specified in that sub‑section.
(5) Where
any accounts, registers or documents are produced before an officer appointed
under section 3 to assist the Commissioner in any proceeding under this Act,
such officer may, for reasons to be recorded in writing, impound and retain
them in custody for a period not exceeding six months, and shall give the
dealer or any other person who has produced such accounts, registers or
documents a receipt for the same.
(6) Where,
at the time of inspection, the officer authorised by
the Commissioner in this behalf has reason to suspect that the dealer is
attempting to avoid or evade tax or is concealing his tax liability in any
manner, he may, for reasons to be recorded in writing, seize such accounts,
registers or documents of the dealer as he may consider necessary and shall
give the dealer or any other person from whom custody such accounts, registers
or documents are seized a receipt for the same, and may retain the same in his
custody for examination, inquiry, prosecution or other legal action, for such
period not exceeding six months.
(7) Notwithstanding
anything contained in sub‑section (6), the accounts, registers or
documents impounded under sub‑section (5) or seized under sub‑section
(6) may be retained beyond a period of six months and up to a maximum period of
two years from the date of impounding or seizure, as the case may be, by such
officer, after having obtained permission in writing from the Commissioner:
PROVIDED that where the books or documents impounded
or seized form a part of the record of assessment, the limitation as provided under
this sub‑section shall not apply.
(8) The
officer authorised by the Commissioner under sub‑section
(3) may seize any goods liable to tax which are found in the possession of a
dealer or in the possession of any person on behalf of such dealer and which
are not accounted for in his accounts, registers or documents maintained in the
course of his business, and a list of goods so seized shall be prepared by such
officer and a copy thereof shall be given to the dealer or any other person
from whose custody such goods are seized.
(9) Where
it is not feasible to seize any accounts, registers or documents under sub‑section
(6) or any goods under sub‑section (8) the officer concerned may serve on
the owner or the person, who is in immediate possession or control thereof, an
order that he shall not remove, part with or otherwise deal with them except
with the previous permission of such officer, and, after serving such order,
may take such steps as may be deemed necessary under the circumstances.
(10) The
officer referred to in sub‑section (8) may, after giving the dealer an
opportunity of being heard and after holding such further enquiry as he may
consider necessary, impose on him for the possession of goods not accounted
for, whether seized or not under sub‑section (8), a penalty equal to five
times of the tax livable or twenty per cent of the value of goods, whichever is
higher, and such officer may release the goods, if seized, on payment of the
penalty imposed.
(11) The
Commissioner shall have the power to confiscate any goods, whether or not they
have been seized under this Act, of any dealer or person which are found in any
office, shop, godown, vehicle, vessel or any other
place of the dealer but not accounted for by him in his accounts, registers and
other documents maintained in the course of business:
PROVIDED that no such order for confiscation of goods
shall be made without giving the dealer or person concerned an opportunity of
being heard.
(12) (a) The officer referred to in sub‑section
(8) may require any person
(i) who
transports or holds in custody any goods of a dealer, to give any information
in his possession in respect of such goods or to allow inspection thereof; and
(ii) who maintains or has in his possession
any accounts, registers or documents relating to the business of a dealer, to
produce such accounts, registers or documents for inspection.
(b) If
the officer authorised under sub‑section (6)
has reason to suspect that any transporter, bailee,
or the owner or lessee of a warehouse to whom the goods are delivered for
transportation is attempting to contravene the provisions of clause (a), or
evade payment of any tax due from him under this Act, he may, for reasons to be
recorded in writing, seize any accounts, registers or documents as referred to
in sub‑clause (ii) of the said clause, of the transporter, bailee or, as the case may be, the owner or lessee of the
warehouse as may be necessary, granting a receipt for the same and, on such
seizure, he shall retain the same as long as may reasonably be necessary for
examination thereof or for appropriate legal action.
(c) The
powers conferred under clause (b) shall include the power to break open any almirah or box or receptacle in which any account, register
or other documents of the transporter, bailee or the
owner or lessee of a warehouse are believed to have been kept, or to break open
the doors of any premises where any such account, register or documents of any
goods referred to in the said clause are believed to have been kept.
(d) The
powers under clause (c) shall not be exercisable by an officer below the rank
of a Sales Tax Officer appointed under this Act.
(e) The
Commissioner shall have the power to seize any goods vehicle or seize and
confiscate any goods of any transporter, bailee or
owner or lessee of a warehouse, which are found in any office, shop, godown, vehicle or vessel or any other place while in
transit but not accounted for by the transporter, bailee,
or the owner or lessee of the warehouse, as the case may be, in his accounts,
registers and other documents maintained in respect of such goods:
PROVIDED that before taking action for the
confiscation of goods under this sub‑section, the Commissioner shall give
the affected person an opportunity of being heard and make an enquiry in the
prescribed manner: PROVIDED FURTHER that where an affected person makes payment
to the Commissioner the amount of tax at the appropriate rate payable in
respect of such goods, to be assessed in the prescribed manner, with a penalty
equivalent to twenty per centum of the value of the goods seized, the goods and
the vehicle so seized shall be released.
(13) If
a dealer fails to produce books of account and such other records and documents
as may be required for the purpose of audit or fails to provide necessary co‑operation
to facilitate smooth conduct of audit or prevents, in any manner, the conduct
of audit, the Commissioner may, after giving the dealer an opportunity of being
heard, impose a penalty not exceeding rupees twenty five thousand on the
dealer.
74. Establishment of check‑posts and
inspection of goods while in transit
(1) The
Government may, with a view to preventing or checking avoidance or evasion of
tax, by notification, direct the establishment of a check‑post or barrier
or both at such places as may be specified in the notification and specify any
of the officers appointed under sub‑section (2) of section 3 to be in
charge of every such check‑post or barrier.
(2) The
driver or person‑in‑charge of every vehicle or carrier of goods in
transit
shall-
(a) carry with him the records of the goods including "challan" and "bilties",
bills of sale or dispatch memos and prescribed declaration form or waybill
filled in and signed by the consignor of goods carried;
(b) stop
the vehicle or carrier at every check‑post or barrier set up under sub‑section
(1) or at any other place when so required by an officer authorised
by the Commissioner in this behalf;
(c) produce
all the documents, including the prescribed way bill relating to the goods,
before the officer‑incharg of the check‑post
or barrier or the authorised officer;
(d) give
all t he information in his possession relating to the goods;
(e) allow
the inspection of the goods or search of the vehicle by the officer‑in‑charge
of the check‑post or barrier or the authorised
officer.
(3) Where
any goods are in transit within the territory of the State, an officer authorised by the Commissioner in this behalf may stop the
vehicle or the carrier or the person carrying such goods, for inspection, at
any place within his jurisdiction and the provisions of sub‑section (2)
shall apply mutatis niittaiidis for such inspection.
(4) Where
any goods in transit are without documents, or are not supported by documents
as referred to in sub‑section (2), or documents produced appear to be
false or forged, the officer‑in‑charge of the check‑post or
barrier, as the case may be, or the officer authorised
under sub‑section (3), may
(a) direct
the driver or the person‑in‑charge of the goods or carrier of the
goods not to part with the goods in any manner including transportation or re‑booking
the same till a verification of, or an enquiry into such goods is made, which
shall be completed within a period of seven days; and
(b) seize
the goods for reasons to be recorded in writing giving receipt for the goods so
seized to the person from whose possession or control the goods are seized.
(5) The
officer‑in‑charge of the check‑post or barrier or the officer
authorised under sub‑section (3), after giving
the driver or person‑in‑charge of the goods a reasonable
opportunity of being heard and holding such enquiry as he may deem fit, may
impose, for possession or movement of goods (in transit), whether seized or
not, in violation of the provisions of clause (a) of sub‑section (2) or
for submission of false or forged documents or way bill either covering the
entire goods or a part of the goods carried, a penalty equal to five times of
the tax leviable on such goods, or twenty per centum
of the value of goods, whichever is higher, in such manner as may be
prescribed.
(6) During
the pendency of the proceeding under sub‑section
(5), if any one prays for being impleaded as a party
to the case on the ground of involvement of his interest therein, the officer‑in‑charge
or the authorised officer referred to in that sub‑section
may, if satisfied, permit him to be so impleaded,
and, thereafter, all the provisions of this section shall inittatis niutandis apply to him.
(7) Subject
to such rules as may be prescribed, the officer‑in‑charge of the
check post or barrier or the officer authorised under
sub‑section (3) may release the goods to the owner of the goods or to any
person duly authorised by such owner, on payment of
the penalty imposed under sub‑section (5) in addition to tax payable
thereon.
(8) Where
the driver or person‑in‑charge of the vehicle or the carrier is
found guilty of violation of the provisions of clause (b), (c), (d) or (e) of
sub‑section (2), subject to the provisions of clause (a) of sub‑section
(4), the officer‑in‑charge of the check‑post or barrier or
the officer authorised under sub‑section (3)
may detain such vehicle or carrier and after affording an opportunity of being
heard to such driver or person‑in‑charge of the goods or the carrier,
may impose a penalty on him as provided under sub‑section (5).
(9) Where
a transporter, while transporting goods, is found to be in collusion or is
likely to be in collusion with a dealer to avoid or evade tax, the officer‑in‑charge
of the check‑post or barrier or the officer authorised
under sub‑section (3) shall detain the vehicle or carrier of such
transporter and, after affording him an opportunity of being heard and with the
approval in writing of the Commissioner, may seize and confiscate such vehicle
or carrier.
(10) When
a vehicle or boat carrying goods, coming from any place outside the State and
bound for any other place outside the State, passes through the State, the
driver or other person‑in‑charge of such vehicle or boat shall
(a) declare,
in such form and manner before the officer‑in‑charge of the first
check‑post or barrier, as the case may be, after his entry into the
State, that the goods under transport shall not be unloaded, delivered or sold
inside the State;
(b) obtain,
in the prescribed manner, a transit pass in such form containing such
particulars as may be prescribed, from the said officer; and
(c) deliver
the transit pass so obtained to the officer‑in‑charge of the last
check‑post or barrier before his exit from the State, failing which, it
shall be presumed that the goods carried thereby have been sold within the
State by the owner or person‑in‑charge of the vehicle or boat:
PROVIDED that where the goods carried by such vehicle
or boat are, after their entry into the State, transported outside the State by
any other vehicle, boat or conveyance, the onus of proving that the goods have
actually been moved out of the State shall be on the owner or person‑in‑charge
of the vehicle or boat.
Explanation: Where a vehicle or boat owned by a person is hired for
transportation of goods by any other person, the hirer of that vehicle or boat
shall, for the purposes of this section, be deemed to be the owner of the
vehicle or boat, as the case may be.
(11) The
officer‑in‑charge of any check‑post or barrier or any other
officer, duly authorised by the Commissioner, may
detain any vehicle or boat and keep it stationary as long as may reasonably be
necessary for examination of the contents therein and the records relating to
the goods under transport by such vehicle or boat and size the same if,
(a) it is presumed under clause (c) of sub‑section (10)
that the goods carried by the vehicle or boat, as the case may be, has been
sold inside the State; or
(b) the
driver or the other person‑in‑charge of the vehicle or boat, as the
case may be, fails, without reasonable cause, to produce or deliver the transit
pass required under sub‑section (10); or
(c) he has
reason to believe that the goods carried by the vehicle or boat, as the case
may be, has been unloaded, delivered or sold inside the State in contravention
of the declaration furnished under sub‑section (10),
and, thereafter, he may direct the driver or the other
person‑in‑charge of the vehicle. or boat, as the case may be, to
pay within a specified period, by way of penalty, a sum equivalent to twenty
per centum of the value of the goods under transport by such vehicle or boat,
as the case may be, or rupees twenty thousand, whichever is higher, in addition
to tax as otherwise payable under this Act, failing which, the said officer may
seize and confiscate the goods under transport or seize the vehicle or boat
carrying such goods in the prescribed manner to recover such tax and penalty:
PROVIDED that-
(i) before taking any action for confiscation
of the goods, the officer shall give the driver or the person‑in‑charge
of the vehicle or boat, as the case may be, an opportunity of being heard and,
if necessary, may make an enquiry in the manner prescribed; and
(ii) where
the goods under transport are not available at the time of seizure of the
vehicle or boat, as the case may be, the officer may detain the vehicle or boat
until such penalty and tax are paid and shall take or cause to be taken any
steps he may consider proper for the temporary safe custody of the vehicle or
boat, and the registered owner or the person having possession or control of
such vehicle or boat and the driver or boatman, as the case may be, thereof
shall be bound to comply with orders and directions as the said officer may, in
respect of the movement of such vehicle or boat, issue for giving effect to
such seizure.
(12) Where
any goods seized are of a perishable nature they shall be sold in the
prescribed manner.
(13) Where
any goods seized under this section are sold, the sale proceeds thereof, after
deduction of the tax including penalty payable under this section and the
expenses incurred for such sale, be paid to the person from whom the goods are
seized.
(14) No
order of penalty shall be made under this section in respect of goods which are
not liable to payment of tax under this Act.
75. Restriction on movement of goods through
railways, water ways, air, postal and courier services
(1) No
person shall transport from any railway station, steamer station, air port,
post office, courier office or from any other place whatsoever as the
Government may, by notification, specify, any consignment of such goods
exceeding such quantity as may be specified in the notification, except in
accordance with such conditions as may be prescribed and such conditions shall
be made with a view to ensuring that there is no evasion of tax payable under
this Act.
(2) Any
officer who may be authorised by the Commissioner in
this behalf, may, for the purpose of verifying whether any goods are being
transported in contravention of the provisions of sub‑section (1) and
subject to such restrictions as may be prescribed, intercept, detain and search
any road vehicle or river craft or any load carried by persons.
(3) Notwithstanding
anything contained in this Act, where any transporter or bailee
happens to be the railways, air ways, river craft, postal or courier services
to whom goods are delivered for transportation keep such goods before delivery
thereof in any office, warehouse, vessel, boat, receptacle or any other place,
the Commissioner may subject to appropriate permission where necessary, enter
into and search such office, warehouse, vessel, boat, receptacle or other
place, and, thereupon, the person‑in‑charge of such goods or and
records relating thereto shall give all facilities for such examination and
inspection and shall produce all relevant information as may be required
relating to the goods.
76. Control on clearing, forwarding or booking
agent and any person transporting goods and furnishing of information by such agent or person
(1) Every
clearing, forwarding or booking agent or broker or a person transporting goods
who, in the course of his business, handles documents of title to goods,
transports goods or takes delivery of goods for or on behalf of a dealer, shall
furnish information about his places of business to such authority, within such
time, in such form, as may be prescribed.
(2) Every
agent, broker or person referred to in sub‑section (1) shall maintain true
and complete accounts, registers and documents in respect of the goods handled
by him and the documents and title relating thereto, and shall furnish true and
complete particulars and information relating to the transaction of goods of
any dealer to any officer appointed under sub‑section (2) of section 3
and authorised by the Commissioner for the purpose
and shall produce such accounts, registers and documents before such officer as
and when required by him.
(3) Where
any agent, broker or person referred to in sub‑section (1) contravenes
the provisions of the said sub‑section or sub‑section (2), the
Commissioner may, after giving such agent, broker or person an opportunity of
being heard, direct him to pay by way of penalty
(a) rupees
two thousand for contravention of the provision of sub‑section (1); and
(b) an
amount equal to three times of the tax payable in respect of the goods involved
in the transactions of a dealer which appears to have been evaded by such
dealer, if the contravention pertains to the provisions of sub‑section
(2).
Explanation: The
expression-
(i) "clearing, forwarding, booking agent or broker"
referred to in sub‑section (1) shall include a person who renders his
services for clearing, forwarding or booking of or taking delivery of
consignment of goods at railway premises, air cargo complex, container depot,
booking agency, goods transport company off lkv or
any place of loading or unloading of goods or contrives, makes and concludes,
bargains and contracts for or on behalf of any dealer for a fee, reward,
commission, remuneration or other valuable consideration or otherwise; and
(ii) "person
transporting goods" referred to in sub‑section (1) shall include the
owner, the manager, agent, driver and employee of the owner, a person who is in‑charge
of a place of loading or unloading of goods, or of goods carrier carrying such
goods for despatch to other places, or who gives
delivery of any consignment of such goods to the consignee.
(4) Without
prejudice to the provisions contained in sections 74 and 75 where a transporter
or a bailee or the owner or lessee of a warehouse to
whom goods are delivered for transportation keeps such goods before delivery
thereof in any office, shop, warehouse, godown,
vessel, boat, receptacle, vehicle or any other place, the Commissioner shall
have the power to enter into and search such office, shop, godown,
vessel, receptacle, vehicle or other place, as the case may be, and to examine
the goods and inspect all records relating thereto and, in every such case, the
transporter, bailee, owner or lessee of the warehouse
or the person‑in‑charge of such goods and records shall give all
facilities for such examination and inspection and shall produce the bills of
sale or such other documents as may be required relating to the goods and give
his name and address and the name and
address of the transporter, bailee, owner or lessee
of the warehouse or the person‑in‑charge of such goods and records,
as the case may be.
Explanation: For the purposes of this section, where goods are
delivered to a transporter, bailee or the owner or
lessee of a warehouse for transmission, the movement of the goods shall be
deemed to commence at the time of such delivery and terminate at the time when
delivery is taken from the transporter, bailee or the
owner or lessee of the warehouse, as the case may be.
(5) If
the Commissioner has reason to suspect that any transporter, bailee or the owner or lessee of a warehouse is attempting
to contravene the provisions of sub‑section (4) or to evade payment of
any tax due from him under this Act, he may, for reasons to be recorded in
writing, seize such accounts, registers or documents of the transporter, bailee or, as the case may be, the owner or lessee of the
warehouse, as may be necessary, by issuing a receipt for the same, and shall
retain the same as long as may reasonably be necessary for examination thereof
or for a prosecution.
(6) The
power conferred under sub‑section (5), shall include the power to break
open any box, almirah or other receptacle in which
any account, register or other documents of the transporter, bailee or the owner or lessee of a warehouse or to break
open the doors of any premises where any such account, register or documents or
any goods may be kept.
(7) The
power exercisable under sub‑section (6) shall not be delegated to any
officer below the rank of a Sales Tax Officer appointed under this Act.
(8) The
Commissioner shall have the power to seize any goods vehicle or seize and confiscate
any goods of any transporter, bailee or the owner or
lessee of a warehouse, which are found in any office, shop, godown,
vehicle or vessel or any other place while on transit but not accounted for by
the transporter, bailee or the owner or lessee of a
warehouse, as the case may be, in his accounts, registers and other documents
maintained in respect of such goods:
PROVIDED that before taking action for the
confiscation of goods under this sub‑section, the Commissioner shall give
the person affected an opportunity of being heard and make such enquiry as
found necessary for the purpose:
PROVIDED that before taking action for the
confiscation of goods under this sub‑section, the Commissioner shall give
the person affected an opportunity of being heard and make such enquiry as
found necessary for the purpose:
PROVIDED FURTHER that where the person affected makes
payment to the Commissioner of the amount of tax payable in respect of such
goods to be assessed in the prescribed manner, with a penalty equivalent to
twenty per centum of the value of the goods seized, the goods and the vehicle
seized as aforesaid shall be released.
(1) Any
dealer aggrieved by an order passed under section 34, 40, 42, 43, 44, 45 or 52
may prefer an appeal to such authority as may be prescribed.
(2) Notwithstanding
anything contained in sub‑section (1), no appeal shall lie against
(a) a
notice issued under this Act calling upon a dealer for assessment or any person
to show cause as to why he shall not be prosecuted for an offence under this
Act; or
(b) an
order pertaining to the seizure or retention of any books of account, registers
and other documents of a dealer; or
(c) an
order sanctioning prosecution of a dealer under this Act; or
(d) an
interim order passed in the course of any proceeding under this Act.
(3) The
appeal under sub‑section (1) shall be preferred within thirty days from
the date on which the order is served on the dealer.
(4) No
appeal against any order shall be entertained by the appellate authority,
unless it is accompanied by satisfactory proof of payment of admitted tax in
full and twenty per centum of the tax or interest or both, in dispute.
(5) Subject
to the provisions contained in sub‑section (4), the appellate authority
may, on application' in that behalf filed by the dealer within the period as
provided in sub‑section (3), stay the realisation
of the balance of tax, interest or penalty, as the case may be, under dispute
either in part or in full till disposal of the appeal.
(6) The
appeal shall be preferred in the prescribed form and shall be verified in the
prescribed manner.
(7) In
disposing of an appeal, the appellate authority may, after giving the appellant
a reasonable opportunity of being heard and after causing such enquiry as he
may deem necessary
(a) confirm,
reduce or annul the assessment of tax, or the levy of interest or imposition of
penalty, if any; or
(b) enhance
the assessment including any part thereof whether or not such part is the
subject‑matter in the appeal; or
(c) set
aside the assessment and direct the assessing authority to make a fresh
assessment after such further enquiry as may be directed.
(8) Every
other passed in an appeal under this section shall, subject to the provisions
of section 79, be final.
78. Appeal to Tribunal and stay of recovery of
dues during pendency of
appeal
(1) Any
dealer or, as the case may be, the Government, if not satisfied with an order
passed under sub‑section (7) of section 77 may, within sixty days from
the date of receipt of such order, prefer an appeal in the prescribed manner to
the Tribunal:
PROVIDED that an appeal preferred after a period of
sixty days may be admitted by the Tribunal, if it is satisfied that the
appellant had sufficient cause for not preferring the appeal within the said
period.
(2) The
dealer or the Government, as the case may be, on receipt of notice that an
appeal has been preferred under sub‑section (1) may, notwithstanding that
such dealer or the Government may not have appealed against such order or any
part thereof, within sixty days of the service of the notice, file a memorandum
of cross objections, and such memorandum shall be disposed of by the Tribunal,
as if it were an appeal presented within time under sub‑section (1).
(3) The
appeal or the memorandum of cross objections shall be in the prescribed form
and shall be verified in the prescribed manner and, in case where appeal has
been preferred by any dealer or person other than the Government, it shall be
accompanied by a fee of rupees one hundred.
(4) The
Tribunal shall, after giving both parties to the appeal a reasonable
opportunity of being heard, dispose of the appeal.
(5) For
the purpose of sub‑section (4), the Tribunal shall have the same powers
and shall be subject to the same conditions as provided in sub‑section
(7) of section 77, and any order passed under sub‑section (4) shall be
final.
(6) Where
a dealer has preferred an appeal under sub‑section (1), the Commissioner
may, stay realisation, either in part or in full, the
amount of tax, interest or penalty, as the case may be, remaining outstanding
for recovery as a result of the disposal of appeal under sub‑section (7)
of section 77, on application in that behalf filed by the dealer within the
period as provided in sub‑section (1).
79. Revisional powers
of Commissioner
(1) Subject
to rules and for reasons to be recorded in writing, the Commissioner may, on
his own motion, revise any order passed under this Act or the rules by any
person, other than the Tribunal, appointed under sub‑section (2) of
section 3 to assist the Commissioner.
(2) Subject
to rules and for reasons to be recorded in writing, the Commissioner may, upon
application filed within the prescribed period, revise any order, other than an
order of the Tribunal, passed by any person appointed under sub‑section
(2) of section 3 to assist the Commissioner.
(3) The
Commissioner shall not entertain any application for revision under sub‑section
(1), if the dealer or person filing the application, having a remedy by way of
appeal under section 77 or section 78, did not avail of such remedy or did not
file the application within prescribed period.
(4) The Commissioner
shall not revise, under sub‑section (1), any order, if
(a) period
for filing of appeal against the order as provided under section 77 or 78 has not expired; or
(b) the
order has been made a subject matter of appeal under section 77 or 78; or
(c) more
than five years have expired after the order sought to be revised was passed.
(5) Notwithstanding
anything contained in sub‑section (4), the Commissioner may pass an order
under sub‑section (1) on any point which has not been raised and decided
in an appeal referred to in clause (b) of sub‑section (4) before the
expiry of the period specified in clause (c) of the said sub‑section.
(6) If
the Commissioner proposes to reject an application for revision made under sub‑section
(2), he shall record the reasons for such rejection.
(7) Any
dealer or person or, as the case may be, the Government, aggrieved by any order
passed by the Commissioner under sub‑section (1) may, within sixty days
from the date of receipt of such order, prefer an appeal
(a) if
the order is passed by the Commissioner, to the High Court; and
(b) if the
order is passed by any authority subordinate to the Commissioner., to the
Commissioner.
(8) All
orders passed under sub‑section (1) shall, subject to orders passed in an
appeal, if any, be final.
(9) Any
dealer or person likely to be affected prejudicially by any order passed under
sub‑section (1) shall be given a reasonable opportunity of being heard
before such order is made.
80. Revision
by High Court in certain cases
(1) Within
sixty days from the date on which an order under sub‑section (4) of
section 78 was served affecting liability of any dealer to pay tax, interest or
penalty under this Act, such dealer by petition in writing accompanied by a fee
of rupees one hundred, or the Commissioner by petition in writing, may move the
High Court against the order on grounds of any question of law arising out of
such order of the Tribunal:
PROVIDED that the High Court may admit a petition
preferred after the period of sixty days as aforesaid if it is satisfied that
the petitioner had sufficient cause for not preferring the petition within that
period.
(2) The
petition shall be in the prescribed form and shall be verified in the
prescribed manner.
(3) If
the High Court, in perusing the petition, considers that there is no sufficient
ground for interfering, it may dismiss the petition:
PROVIDED that no petition shall be dismissed without
giving the petitioner a reasonable opportunity of being heard.
(4)
(a) If the High Court
does not dismiss the petition under sub‑section (3), it shall, after
giving both the parties to the petition a reasonable opportunity of being
heard, determine the question or questions of law raised and reveres, confirm
or amend the order against which the petition was preferred or remit the matter
to the Tribunal with the opinion of the High Court on the question or questions
of law raised or pass such other order in relation to the matter as the High
Court thinks fit.
(b) Where
the High Court remits the matter to the Tribunal under clause (a) with its
opinion on the question or questions of law raised, the latter shall amend the
order passed by it in conformity with such opinion.
(5) Before
passing an order under sub‑section (4), the High Court may, if it
considers necessary to do so, remit the petition with its findings on any
specific question or issue.
(6) Notwithstanding
that a petition has been moved under sub‑section (1), the tax or any
other dues under this Act shall be paid in accordance with the order against
which the petition has been moved:
PROVIDED that if, as a result of the petition, any
change in the assessment becomes necessary, the High Court may direct the
assessing authority to amend the assessment and the assessing authority shall
amend the assessment accordingly and, thereupon, the excess amount paid, if
any, by the assessee shall be refunded to him without
interest or the additional amount of tax or other dues payable by him shall be
collected, in accordance with provisions of this Act, as the case may be.
(7)
(a) The High Court may,
on the application of either party to the petition, review any order passed by
it under sub‑section (4), on the basis of facts, which were not before it
when it passed the order.
(b) The
application for review shall be preferred within such time and in such manner
as may be prescribed and shall, where it is preferred by any person other than
the Commissioner, be accompanied by a fee of rupees one hundred.
(1) With
a view to rectifying any arithmetical or clerical mistake or any error apparent
on the face of record, the assessing authority, appellate authority or revision
authority or the Tribunal may, at any time within five years from the date of
an order passed by it, amend such order:
PROVIDED that an amendment which has effect of
enhancing an assessment or otherwise increasing the liability of the assessee shall not be made unless the assessing authority,
appellate authority or revision authority or the Tribunal, as the case may be,
has given notice to the assessee of its intention to
do so and has allowed the assessee a reasonable
opportunity of being heard.
(2) Where
any order, sought to be rectified under sub‑section (1) by amendment, has
been considered and decided in any proceedings by way of appeal or revision,
then, notwithstanding anything contained in any law for the time being in
force, the authority acting under the said sub‑section shall not make any
amendment in relation to any matter which has been so considered and decided.
(3) An
order passed under sub‑section (1) shall be deemed to be an order passed
under the same provisions of law under which the original order containing the
mistake or error was passed.
(1) Whoever-
(a) knowingly
furnishes a false return; or
(b) not
being a registered dealer, falsely represents that he is a registered dealer at
the time when he sells or purchases goods; or
(c) knowingly
produces false bill, invoice, cash memorandum, voucher, declaration,
certificate or other documents for evading tax payable under this Act; or
(d) knowingly
keeps false account of the value of the goods purchased or sold by him in
contravention of the provisions of this Act; or
(e) knowingly
produces false accounts or documents, or furnishes false information; or
(f) issues
to any person, certificate, declaration or tax invoice under this Act or any
false bill, cash memorandum, voucher, delivery challan,
lorry receipt or other document which he knows or has reason to believe to be
false; or
(g) wilfull attempts, in any manner whatsoever, to evade any
tax, interest or penalty payable under this Act,
shall, on conviction, be punished-
(i) where the amount of tax, interest or penalty, or all of them
together involved is less than rupees fifty thousand in a year, with
imprisonment of either description for a term which shall not be less than
three months but which may extend to one year and with fine; and
(ii) in
any other case, with imprisonment of either description for a term which shall
not be less than six months but which may extend to two years and with fine.
(2) Whoever
aids, abets or induces any person in commission of any act specified in clauses
(a) to (g) of sub‑section (1) shall, on conviction, be punished with
imprisonment of either description which shall not be less than three months
but which may extend to one year and with fine.
(3) Whoever-
(a) is
engaged in any business as dealer without being registered in wilful contravention of section 24; or
(b) fails,
without sufficient cause, to keep any accounts or record as directed in
accordance with the provisions of this Act; or
(c) fails,
without sufficient cause, to keep such records as required by the Commissioner
under sub‑section (3) of section 61; or
(d) fails,
without sufficient cause, to comply with any requirements made of him under
section 73; or
(e) voluntarily
obstructs any officer making inspection or search or seizure under section 73,
74 or 75,
shall, on conviction, be punished with imprisonment of
either description for a term which shall not be less than six months but which
may extend to one year and with fine.
(4) Whoever
fails, without sufficient cause, to furnish any return for any tax period by
the date and in the manner prescribed under this Act shall, on conviction, be
punished with imprisonment of either description for a term which may extend to
one year and with fine which shall not be less than
(a) rupees
two thousand, if the tax due for the period covered by the return not so
furnished, does not exceed rupees twenty thousand;
(b) rupees
five thousand, if the tax due for the period covered by the return, not so
furnished, exceeds rupees twenty thousand but does not exceed rupees one lakh;
(c) rupees
ten thousand, if the tax due for the period covered by the return, not so
furnished, exceeds rupees one lakh.
(5) Whoever
commits any of the acts specified in sub‑sections (1) to (4) and when
such act is a continuing one, he shall, on conviction, be punished with daily
fine amounting to not less than rupees one hundred during the period of the
continuance of the offence, in addition to the punishment provided under this
section.
(6) Notwithstanding
anything contained in sub‑sections (1) to (5), no person shall be
prosecuted under any of these sub‑sections for any act referred to
therein, if the total amount of tax evaded or attempted to be evaded is less
than rupees two hundred during the period of a year.
(7) When
a dealer accused of an offence specified in sub‑sections (1) to (5), the
person declared to be the manager of the business or the person holding power
of attorney of such dealer or the person who in any manner acts for or on
behalf of such dealer shall be deemed to be guilty of such offence, unless he
proves that the offence was committed without his knowledge or that he
exercised due diligence to prevent the commission thereof.
(8) In
any prosecution for an offence under this section, which requires a culpable
mental state on the part of the accused, the Court shall presume the existence
of such mental state, but it shall be a defence for
the accused to prove the fact that he had no such mental state with respect to
the act charged as an offence in that prosecution.
Explanation: In this sub‑section "culpable mental
state" includes intention, motive, knowledge of a fact and belief in, or
reason to believe, a fact.
83. Offences
by companies and Hindu Undivided Families
(1) Where
any act specified in section 82 has been committed by a company, every person
other than a nominated director who, at the time the offence was committed, was
in‑charge of, and was responsible to, the company for the conduct of the
business of the company, as well as the company shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished
accordingly:
PROVIDED that nothing contained in this sub‑section
shall render any such person liable to any punishment provided in this Act, if
he proves that the offence was committed without his knowledge or that he
exercised due diligence to prevent the commission of such offence.
(2) Notwithstanding
anything contained in sub‑section (1), where an offence under this Act
has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any neglect
on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation: For the purpose of this section,
(a) "company"
means any body corporate and includes a firm or other association of
individuals; and
(b) "director",
in relation to the firm, means partner in the firm.
(3) Where
any offence under this Act has been committed by a Hindu Undivided Family, the Karta thereof shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub‑section
shall render the Karta. , liable to any punishment if
he proves that the offence was committed without his knowledge or that he had
exercised due diligence to prevent the commission of such offence:
PROVIDED FURTHER that where an offence under this Act
has been committed by a Hindu Undivided Family and it is proved that the
offence has been committed with the consent or connivance of, or is
attributable to, any neglect on the part of, any adult member of the family,
such member shall also be deemed to be guilty and shall be liable to be
proceeded against and punished accordingly.
(1) No
Court shall take cognizance of any offence under this Act or the rules, except
with the previous sanction of the Commissioner and no Court inferior to that of
a Magistrate of the First Class shall try such offence.
(2) The
offences punishable under sub‑sections (1), (2) and clause (e) of sub‑section
(3) of section 82 shall be congnizable and non‑bailable and other offences punishable under the said
section shall be congnizable.
(1) Subject
to conditions, if any, as may be prescribed, the Commissioner may authorise either generally or in respect of a particular
case or class of cases, any officer appointed under sub‑section (2) of
section 3 to investigate all or any of the offences punishable under this Act.
(2) Every
officer so authorised shall, in the conduct of such
investigation, exercise the powers, conferred by the Code of Criminal
Procedure, 1973 (2 of 1974), upon an officer‑in‑charge of the
police station for the investigation of a cognizable offence.
(1) The
Commissioner may, either before or after the institution of proceedings of any
offence punishable under section 82, accept, by way of composition, from any
person charged with any offence under sub‑section (1), (3) or (4) of the
said section a sum not exceeding three times the amount of tax which would have
been payable on the sale or purchase
turnover to which the offence relates or rupees ten thousand, whichever is higher.
(2) On
payment of such sum as may be determined by the Commissioner under sub‑section
(1), no further proceedings shall be taken against the accused person in
respect of the same offence and any proceeding, if already taken, shall not be
proceeded with further.
Any person who obstructs, molests or assaults an
officer appointed under sub‑section (2) of section 3 to assist the
Commissioner in or during the performance of his duties as are or may be
conferred or imposed by or under the provisions of this Act, or does anything
which is likely to prevent or 6bstruct the performance of any of such duties
including recording of evidence, shall be liable for prosecution and, on
conviction, be punished with regorous imprisonment
which may extend up to six months or fine not exceeding rupees twenty five
thousand or both.
88. Bar to
certain proceedings
Save as provided in section 80, no assessment made or
order passed under this Act or the rules shall be called into question in any
Civil Court and, save as provided in sections 77, 78 and 79, no appeal or
application for revision shall lie against any such assessment or order.
89. Disclosure
of information by public servant
(1) All
particulars contained in any statement made, return furnished or accounts or
documents produced in accordance with the provisions of this Act and rules or
in any record of evidence given in the course of any proceedings under this Act
or the rules, other than proceedings before a Criminal Court, shall, save as
provided in sub‑section (3), be treated as confidential, and
notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872), no Court shall, save as aforesaid, be entitled to require any Government
servant to produce before it any such statement, return, account, document or
record or any part thereof, or to give evidence before it in respect thereof.
(2) Save
as provided in sub‑section (3), if any Government servant discloses any of
the particulars referred to in sub‑section (1), he shall be punishable
with imprisonment which may extend to six months and shall also be liable to
fine.
(3) Nothing
in this section shall apply to the disclosure of
(a) any of
the particulars referred to in sub‑section (1) for the purpose of
investigation or prosecution under this Act or the Indian Penal Code, 1860 (45
of 1860) or any other enactment for the time being in force; or
(b) such
facts to an officer of the Central Government or any State Government as may be
necessary for verification of such facts or for the purposes of enabling that
Government to levy or realise any tax imposed by it;
or
(c) any
such particulars when such disclosure is occasioned by the lawful employment
under this Act of any process for the service of any notice or the recovery of
any demand; or
(d) any
such particulars to Civil Court in any suit or proceeding to which the
Government or any authority under this Act is a party and which relates to any
matter arising out of any proceeding under this Act or under any other law for
the time being in force authorising any such
authority to exercise any powers there under; or
(e) any
such particulars by any public servant when the disclosure is occasioned by the
lawful exercise by him of his powers under the Indian Stamp Act, 1899 (2 of
1899) to impound an insufficiently stamped document; or
(f) any
such particulars to the Reserve Bank of India as are required by that Bank to
enable it to compile financial statistics; or
(g) any
such particulars to any officer appointed by the Comptroller and Auditor
General of India for the purpose of audit of tax receipts or refunds; or
(h) any
such particulars, relevant to any inquiry into a charge of misconduct in
connection with income‑tax proceedings against a legal practitioner or
Chartered Accountant, to the authority empowered to take disciplinary action
against members of the profession to which he belongs; or
(i) such particulars to the officer of the Central Government or
any State Government for such other purposes, as the State Government may, by
general or special order; direct; or
(j) any
information relating to any class of dealers or class of transactions for
publication, if, in the opinion of the Commissioner, it is desirable in the
public interest, to publish such information.
(1) Notwithstanding
anything contained in section 89, if the Government is of the opinion that it
is necessary or expedient in the public interest to publish or disclose the
names of any dealer or other persons or any other particulars relating to any
proceeding under this Act in respect of such dealers and persons, it may
publish or disclose such names or particulars in such manner as it thinks fit.
(2) No
publication or disclosure under this section shall be made in relation to any
tax levied or penalty imposed or interest levied or any conviction for an
offence connected with any proceeding under this Act, until the time for appeal
to the appropriate appellate authority has expired without an appeal having
been filed or the appeal, if filed, has been disposed of.
91. Appearance
before any authority in proceedings
(1) Any
person, who is entitled or required to appear before any authority in
connection with any proceeding under this Act, may attend
(a) by a
person authorised by him in writing, being a relative
or a person regularly employed by him; or
(b) by a
legal practitioner or Chartered Accountant or a Cost Accountant who is not
disqualified by or under sub‑section (2); or
(c) by a
tax practitioner who possesses the prescribed qualification and is enrolled by
the Commissioner for the purpose and who is not disqualified by or under sub‑section
(2).
(2) The
Commissioner may, by order in writing, for reasons to be recorded therein,
disqualify for such period as may be stated in the order from attending before
any such authority, any tax practitioner, legal practitioner, Chartered Accountant
or Cost Accountant
(a) who
has been removed or dismissed from Government service; or
(b) who,
being a legal practitioner or Chartered Accountant or Cost Accountant, is found
guilty of misconduct in connection with any proceeding under this Act by an
authority empowered to take disciplinary action against the members of the
profession to which he belongs; or
(c) who,
being a tax practitioner enrolled by the Commissioner, is found guilty of any
misconduct.
(3) No
order of disqualification under sub‑section (2) shall be made in respect
of any particular person, unless he has been given a reasonable opportunity of
being heard.
(4) Any
person against whom an order of disqualification is made under sub‑section
(2) may, within one month of the date of communication of such order, appeal to
the Government to have the order cancelled.
(5) The
order of the Commissioner shall not take effect until one month of the making
thereof or, when an appeal is preferred, until the appeal is decided.
(6) The
Commissioner, may, at any time, suo motu or on an application made to him in this behalf,
revoke any order made against any person under sub‑section (2) and
thereupon such person shall cease to be disqualified.
92. Powers
to summon and take evidence on oath, etc.
(1) The
Commissioner, the Tribunal and any person appointed under sub‑section (2)
of section 3 to assist the Commissioner shall, for the purposes of this Act,
have the same powers as are vested in a Court under the Code of Civil
Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following
matters, namely
(a) enforcing
attendance of any person and examining him on oath or affirmation;
(b) compelling
the production of accounts and documents; and
(c) issuing
summons for the examination of witnesses.
(2) Any
proceeding under this Act before the Commissioner or the Tribunal or person
referred in sub‑section (1) shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228 and for the purposes of section 196,
of the Indian Penal Code, 1860 (45 of 1860).
93. Transfer of assets during pendency of
proceedings to be void
Where, during the pendency of
any proceeding under this Act or under the Act repealed by section 104 of this
Act, any person creates a charge on or parts with the possession by way of
sale, mortgage, gift, exchange or any other mode of transfer whatsoever, of any
of this assets in favour of any other person with the
intention to defraud revenue, such charge or transfer shall be void as against
any claim in respect of any tax or any other sum payable by such person as a
result of completion of the said proceeding.
(1) The
Government may, by notification, make rules, with prospective or retrospective
effect, for carrying out the purposes of this Act.
(2) In
particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the matters which under any provision of
this Act are required to be prescribed or to be provided for by rules.
(1) Where any dealer claims
that-
(a) the
receipt or despatch of any goods made by him is otherwise
than by way of purchase or sale of such goods by him;
(b) any
sum of money received or paid by him in the course of business is otherwise
than by way of sale or purchase of goods by him;
(c) any
purchase or sale of goods made by him is not liable to tax by reason of such
purchase or sale being outside the State or in the course of inter‑State
trade or commerce or in the course of the import of the goods into or the
export of the goods out of the territory of India;
(d) any
purchase or sale of goods made by him is exempt from tax or leviable
to tax at a particular rate;
(e) any
purchase or sale of goods made by him is not taxable because of return of
goods;
(f) any
purchase, sale, import or export of goods made by him is not part of his gross
turnover;
(g) any
part of the gross turnover declared by him in the returns filed is not taxable;
(h) any
tax paid under this Act relates to the goods purchased by him, for which, it is
part of the input tax in respect of the purchase of such goods by him;
(i) input tax in respect of any purchase of goods made by him is
part of the input tax credit admissible to him;
(j) any
amount has been paid by him as tax, interest or penalty under this Act; or
(k) any book,
document or account kept or found in his business premises or any place
including a godown, warehouse, vehicle or vessel over
which he has ultimate control does not relate to his business,
the burden of so proving shall be on him and, for the
purpose of proving one or all or any of the claims, he shall produce or furnish
such documents containing such particulars, within such time, before such
authority and in such manner, as may be prescribed and such authority may, for
sufficient reasons, require him to produce such further evidence as it may deem
necessary, and where no document has been prescribed, such authority may
require such evidence to be produced before it as it may deem necessary.
96. Manner
of payment of tax, interest, penalty, etc.
Where the manner of payment of any tax, interest or
penalty payable by a person, or any sum determined by the Commissioner in
compounding any offence under this Act, is not provided specifically elsewhere
in this Act, such tax, interest, penalty or sum shall be paid into a Government
Treasury in the manner prescribed:
PROVIDED that the Government may, by notfication, specify such different manner of payment of
tax, interest, penalty or sum payable under this Act in respect of any
individual dealer or class of dealers.
97. Power
of Government to prescribe fees
(1) There
shall be paid, upon every memorandum of appeal, application for revision and
other miscellaneous application or petition, other than an application referred
to in sub‑section (1) of section 78 and a petition referred to in sub‑section
(1) of section 80, for any relief under this Act, such fees as may be
prescribed:
PROVIDED that any fee prescribed under this section
shall not exceed rupees one thousand.
(2) The
fee as aforesaid shall be paid in court fee stamps to be affixed to the
memorandum of appeal, application for revision or other miscellaneous
application or petition, as the case may be, referred to in sub‑section
(1).
98. Assessment proceedings, etc. not to be
invalid on certain grounds
(1) No
return, assessment, appeal, rectification, notice, summons or other proceedings
accepted, made, issued or taken, or purported to have been accepted, made,
issued or taken in pursuance of any of the provisions of this Act shall be
invalid or deemed to be invalid merely by reason of any mistake, defect or
omission in such return, assessment, appeal, rectification, notice, summons or
other proceedings, if such return, assessment, appeal, rectification, notice or
other proceedings are, in substance and effect, in conformity with or according
to the intents, purposes and requirements of this Act.
(2) The
service of any notice, order or communication shall not be called in question
if the notice, order or communication, as the case may be, has already been
acted upon by the dealer or person to whom it is issued or where such service
has not been called in question at or in the earliest proceedings commenced,
continued or finalised pursuant to such notice, order
or communication.
(3) No
order, including an order of assessment, revision or rectification passed by
any authority under any provision of this Act shall be invalid merely on the
grounds that the action could also have been taken by any other authority under
any other provision of this Act.
Notwithstanding anything contained in any other law
for the time being in force, no dealer shall be entitled to undertake any
contract with any Government, local authority or other corporate body, unless
he obtains a certificate in the prescribed manner from the Commissioner to the
effect that he has no liability to pay tax nor he has defaulted under this Act.
(1) Notwithstanding
anything contained in any law for the time being in force or any contract to
the contrary, the Commissioner, during the course of inquiry in any proceedings
including proceedings related to recovery of any amount due, in respect of any
person or dealer or during any inspection or search in relation to the business
of any person or dealer under this Act, if he is of the opinion that for the
purpose of protecting the interests of the revenue it is necessary so to do,
may attach provisionally by notice in writing the stock in trade held by such
person or dealer during such enquiry, inspection or search:
PROVIDED that the Commissioner may, by order, revoke
such notice if the dealer furnishes to the Commissioner, such security, for
such period and within such time, as may be specified in the said order.
(2) Every
such provisional attachment shall cease to have effect after expiry of one year
from the date of service of the notice under sub‑section (1):
PROVIDED that the Commissioner may, for reasons to be
recorded in writing, extend the aforesaid period by such further period or
periods as he may think fit to do so, however that the total period of such
extension shall not in any case exceed one year.
(3) Where
a notice under sub‑section (1) is served upon any person or dealer
provisionally attaching the stock in trade held by him, such person or dealer
shall be personally liable, so long as the attachment notice is not revoked or
has not ceased to have effect, to pay, to the Commissioner, the amount of money
covered under such attachment.
101. Special
provision relating to under‑invoicing
(1) Where
the Commissioner has, for the purpose of any proceeding under this Act, reasons
to believe that any goods kept in stock or being carried by a dealer or any
person on behalf of a dealer are under‑valued or under‑priced in
any document relating to such goods produced before him, he may, after causing
such enquiry as he considers necessary in the circumstances, intimate such
dealer or person, by a notice in the prescribed form, the prevailing market
price of such goods and direct such dealer or person to pay tax under this Act
on the basis of the prevailing market price.
(2) Where
the goods referred to in sub‑section (1) are being carried, the officer‑incharge of the check‑gate or barrier or an officer authorised under sub‑section (3) of section 74, as
the case may be, may detain the vehicle carrying such goods until the tax
demanded under sub‑section (1) is paid.
(3) Where
the goods referred to in sub‑section (1) are found in stock and the
dealer or the person on behalf of the dealer, on whom the notice under that sub‑section
was served, fails to pay the tax in terms of such notice, or where the tax
demanded is not paid under sub‑section (2), the Commissioner may offer to
purchase such goods at a price at ten per centum above the purchase value or
the value disclosed by the principal or agent in the case of goods received on
consignment basis plus actual transportation charges and entrust such goods to
the Orissa State Civil Supplies Corporation Ltd. or
any co‑operative society as may be notified for sale or sell it through
public auction in the prescribed manner.
(4) The
dealer or the person on being directed under sub‑section (3) shall be
bound to sell the goods to the Commissioner and if he refuses, fails or does
not deliver the goods within the time mentioned in the notice offering to
purchase goods he shall be liable to penalty, which shall be equal to twenty
per centum of the value of the goods at the prevailing market price.
(5) No
penalty under sub‑section (4) shall be imposed without allowing such
dealer or person, as the case may be, an opportunity of being heard.
(6) If,
in pursuant to the notice issued under sub‑section (4), the dealer or the
person delivers the goods to the Commissioner he shall be paid the price of
such goods as determined under sub‑section (3) along with the cost of
transportation within fifteen days of the delivery of the goods.
(7) Any
person aggrieved by the order or notice, as the case may be, under sub‑section
(3) or under sub‑section (4) may file an application for revision before
the prescribed authority within thirty days from the date of receipt by him of
the decision, in such form and in such manner as may be prescribed:
PROVIDED that the said prescribed authority may admit
an application made after the expiry of thirty days, if he is satisfied that
the applicant had sufficient cause for not making the application within the
said period.
102. Settlement
of disputed tax under appeal or revision
Notwithstanding anything contained in any law for the
time being in force, the Government may, subject to such conditions and
restrictions as may be specified by the notification made in this behalf,
refer, during the period as may be specified in the notification, any case
pending in appeal under section 77 or 78 or in revision in the High Court under
section 80 to the Commissioner to settle the disputed amount under appeal or
revision, as the case may be, in the manner prescribed.
103. Power to
remove difficulties
(1) If
any doubt or difficulty arises in giving effect to any of the provisions of
this Act, in consequence of the transition to the said provisions from the
corresponding provisions of the Act repealed by section 104, or otherwise, the
Government may, as the occasion may require, by order, do anything not
inconsistent with the provisions of this Act or the rules, which appears to it
necessary for the purpose of removing the doubt or difficulty:
PROVIDED that no order shall be issued under this
section after the expiry of a period of two years from the date of commencement
of this Act.
(2) Any order
made under this section shall be laid before the Assembly.
REPEAL AND SAVINGS, ADOPTATOIN AND TRANSITIONAL
ROVISIONS
(1) The
Orissa Sales Tax Act, 1947 (Orissa
Act 14 of 1947) is hereby repealed.
(2) The
repeal of the Orissa Sales Tax Act, 1947 (hereinafter
referred to as the repealed Act) under sub‑section (1) shall not
(a) revive
anything not in force or existing at the time at which the repeal takes effect;
or
(b) affect
the previous operation of the repealed Act or anything duly done or suffered
there under; or
(c) affect
any right, privilege, obligation, or liability acquired, accrued or incurred
under the repealed Act; or
(d) affect
any tax, surcharge, penalty, interest as are due or may become due or any
forfeiture or punishment incurred or inflicted in respect of any offence or
violation committed under the provisions of the repealed Act; or
(e) affect
any investigation, enquiry, assessment proceeding, any other legal proceeding
or remedy in respect of any such tax, surcharge, penalty, interest, right,
privilege, obligation, liability, forfeiture or punishment, as aforesaid,
and any such investigation, enquiry, assessment
proceeding, other legal proceeding or remedy may be instituted, continued or
enforced, and any such tax, surcharge, penalty, interest, forfeiture or
punishment may be levied or imposed as if this Act had not been enacted.
105. Adoptations
All Assessment Units, Investigation Units, Railway
Receipt Units, Circles and Ranges including Intelligence Circles and Ranges and
Vigilance Circles constituted under the repealed Act or the rules and
notifications issued there under, all check‑gates and barriers
established under the said Act and all interception points authorised
by the Commissioner of Sales Tax or by any officer appointed to assist him
under the said Act, as exist on the day immediately before the appointed day,
shall be deemed to have been so respectively constituted, established or authorised under and in accordance with the provisions of
this Act and the rules.
(1) A
dealer registered under the repealed Act, who would have continued to be liable
to pay tax under that Act had this Act not come into force, shall be deemed to
be a registered dealer under this Act.
(2) Notwithstanding
anything contained elsewhere in this Act and until, specifically, so or
otherwise prescribed or notified or done in accordance with the provisions of
this Act,
(a) any
person appointed by the Government as the Commissioner of Sales Tax under sub‑section
(1) of section 3 of the repealed Act and continuing in office as such on the
day immediately before the appointed day shall, on and from the appointed day,
be deemed to have been appointed as the Commissioner of Sales Tax under sub‑section
(1) of section 3 of this Act and he shall exercise such powers and discharge
such functions as are or may be conferred or imposed by or under the provisions
of this Act;
(b) such
other persons who have been appointed by the Government under sub‑section
(3) of section 3 of the repealed Act as Additional Commissioner of Sales Tax,
Special Additional Commissioner of Sales Tax, Assistant Commissioner of Sales
Tax, Sales Tax Officer, Assistant Sales Tax Officer and Inspector of Sales Tax
to assist the Commissioner under the said Act and continuing as such in office
on the day immediately before the appointed day shall, on and from the
appointed day, be deemed to have been, respectively, so appointed under sub‑section
(2) of section 3 of this Act.
Explanation: The designation by which such other persons shall be
deemed to have been appointed under clause (b) shall, for the purposes of sub‑section
(2) of section 3, be deemed to be the prescribed designations, until otherwise
prescribed;
(c) all
such powers and duties, as have been conferred or imposed by or under the
provisions of the repealed Act or the rules made and notifications issued there
under or the persons appointed under any designation prescribed under‑the
said Act to assist the Commissioner, and are exercised and performed on the day
immediately before appointed day within or over a Circle or a Range or the
State, as have been assigned to them by the Commissioner, shall, on and from
the appointed day, for all intents and purposes, be deemed to have been
conferred or imposed by or under the corresponding provisions of this Act on
the persons who, under clause (b) are deemed to have been appointed under such
designation to assist the Commissioner under this Act and shall be exercised
and performed by them within or over the same Circle or Range or the State, as
the case may be, as if such area has been assigned to them by the Commissioner
in accordance with the provisions of this Act for purpose of exercising their
jurisdiction.
Explanation: For the purposes of exercising any power or
performing any function under the provisions of this Act, such power and such
function under the corresponding provisions of this Act shall be deemed to have
been delegated to the persons deemed to have been appointed under the
respective designation under clause (b);
(d) the
Chairman or any Member of the Orissa Sales Tax
Tribunal constituted under the repealed Act and continuing in office as such
immediately before the appointed day, shall, on and from the appointed day, be
deemed to have been respectively appointed as the Chairman or Member of the
Tribunal and shall exercise such powers and perform such functions as are
conferred or imposed by or under the provisions of this Act;
(e) all forms including way bill and transit pass prescribed under the repealed
Act or the rules made or notifications issued there under and in force and use
for any purpose on the day immediately before the appointed day, shall be used
for the same purpose under the provisions of this Act;
(f) any
application for issue of way bill, pending on the day, immediately before the
appointed day, shall for all intent and purposes of this Act be deemed to have
been made under this Act and shall be disposed of in accordance with the
provisions of this Act;
(g) any
way bill referred to in clause (e) which is valid on the day immediately before
the appointed day and endorsed for the transport of goods into or outside the
State shall continue to be valid for all intents and purposes of this Act on
and from the appointed day if the period of validity of such way bill has not
expired;
(h) a
dealer, required to furnish a return for any period by a specific date to the
prescribed authority under the provisions of the repealed Act or the rules made
or notice issued there under, shall furnish such return under this Act by the said
date to the corresponding authority as if he is so required to furnish the
return under the provisions of this Act:
PROVIDED that if the appointed day falls during the
period for which the return is required to be furnished, he shall furnish
separate returns for the period ending on the day immediately before the
appointed day and for the period commencing on the appointed day, respectively
in accordance with the provisions of the repeated Act and this Act;
(i) for the purposes of clauses (a) to (h),
all rules made or notifications or notices issued or orders passed under or in
pursuance of the provisions of the repealed Act shall be deemed to have been
made, issued or passed under or in pursuance of the corresponding provisions of
this Act, unless they are inconsistent with this Act;
(j) a
registered dealer, who was eligible to the benefit of deferment of tax in terms
of a notification issued under the repealed Acton the day immediately before
the appointed day and who would have continued to be so eligible on appointed
day under the repealed Act had this Act not come into force, shall be allowed
the benefit of such deferment in respect of tax payable by him under this Act,
by the Commissioner, for the balance unexposed period subject to the limit of
such percentage of gross value of the fixed capital investment to which such
dealer would have been entitled and the same restrictions and conditions as
specified in such notification.
(k) nothing
contained in clause (j) shall prevent the Commissioner from withdrawing the
benefit of deferment of tax, if the registered dealer eligible for such
deferment violates the restrictions and conditions subject to which such
deferment was allowed;
(l) a
registered dealer, who was eligible to the benefit of, or was entitled to,
exemption from payment of tax on purchase of raw materials, spare parts,
packing materials and sale of its finished products under the repealed Act on
the day immediately before the appointed day, shall, on and from the appointed
day, be allowed the benefits of deferment of tax, in lieu of such exemption
subject to such restrictions and conditions as the Government may, by
notification, specify in this behalf.
107. Input tax credit in respect of stock held on
the appointed day
(1) Within
a period of one month from the appointed day, all dealers whose registration
has been continued under sub‑section (5) of section 25, other than those
who are liable to pay turnover tax under section 16, shall furnish a statement
of their opening stock of raw materials, finished goods, semi‑finished
goods including capital goods, if any, and goods for resale held on the date of
such appointed day to the Commissioner in the prescribed form.
(2) In
respect of that part of the opening stock of goods on the appointed day,
purchased within a period of twelve months immediately preceding the appointed
day, which suffered tax under section 3‑13 of the repealed Act or on
which tax has been paid under section 8 of that Act, input tax credit shall be
admissible at such rate and in, such manner as may be prescribed.
(3) The
part of the opening stock of goods which is not covered under sub‑section
(2), when sold inside the State after the appointed day shall be subject to
output tax as applicable under this Act and in respect of such goods,
subsequent input tax credit in accordance with the provisions contained therein
shall be available.
(4) If
the Commissioner is satisfied that a dealer has claimed input tax credit in
excess of what is admissible or to which he is not entitled under sub‑section
(3), the Commissioner may, after allowing the dealer a reasonable opportunity
of being heard, direct him to pay, by way of penalty, a sum equal to ten times
the amount of input tax credit which is not so admissible or to which he is not
so entitled.
(5) For
the purpose of sub‑section (4), the dealer shall, in support of his
claim, produce before the Commissioner, if so deemed necessary, the sale
vouchers in original under the repealed Act or the Central Sales Tax Act, 1956
(74 of 1956) against the purchases or the relevant document showing despatch of goods from outside the State otherwise than by
way of sales to that dealer.
(Refer section 17)
LIST OF GOODS EXEMPTED FROM
VALUE ADDED TAX
|
Sl. No. |
Description
of goods |
Conditions
Of Exemptions |
|
(1) |
(2) |
(3) |
|
1. |
Agricultural implements manually operated or
animal driven |
|
|
2. |
Aids and implements used by handicapped
persons |
|
|
3. |
Aquatic feed, poultry feed and cattle feed
including grass, hay and straw |
|
|
4. |
Betel leaves |
|
|
5. |
Books, periodicals and journals |
|
|
6. |
Charkha, Ambar
Charkha, Handlooms and handloom fabrics and Gandhi Topi |
|
|
7. |
Charcoal |
|
|
8. |
Coarse grains other than paddy, rice and
wheat |
|
|
9. |
Condoms and contraceptives |
|
|
10. |
Cotton and silk yam in hank |
|
|
11. |
Curd, Lussi, Butter
milk and separated milk |
|
|
12. |
Earthen pot |
|
|
13. |
Electrical energy |
|
|
14. |
Firewood |
|
|
15. |
Fishnet and fishnet fabrics |
|
|
16. |
Fresh milk and pasteurized milk |
|
|
17. |
Fresh plants, saplings and fresh flowers |
|
|
18. |
Fresh vegetables including potato, onion,
lemon and fresh fruits |
|
|
19. |
Garlic and ginger |
|
|
20. |
Glass bangles |
|
|
21. |
Human blood and blood plasma |
|
|
22. |
Indigenous handmade musical instruments |
|
|
23. |
Kumkum, bindi,
alta and sindur |
|
|
24. |
Meat, fish, dry fish, prawn, and other
aquatic products, eggs and livestock and animal hair. |
Meat, fish, dry fish, prawn, and other
aquatic products, when not cured or frozen shall be exempted. |
||||
|
25. |
National flag |
|
||||
|
26. |
Organic manure |
|
||||
|
27. |
Non-judicial stamp paper sold by Government
Treasuries, postal items like envelope, post card etc. sold by Government;
rupee note, sold to the Reserve Bank of India and cheques, loose or in book
form |
|
||||
|
28. |
Raw wool |
|
||||
|
29. |
Semen including frozen semen |
|
||||
|
30. |
Silk worm laying, cocoon and raw silk |
|
||||
|
31. |
Slate, slate pencils, educational maps,
globes and charts |
|
||||
|
32. |
Tender green coconut |
|
||||
|
33. |
Toddy, Neera and Arak |
|
||||
|
34. |
Unbranded bread |
|
||||
|
35. |
Unprocessed and unbranded salt |
|
||||
|
36. |
Water other than- (i) aerated, mineral, distilled, medicinal, ionic,
battery, dernineralised water, and (ii) water sold in sealed container |
|
||||
|
37. |
Articles manufactured from Palm juice, Palm
leaves and Coconut leaves such as Baskets, Brushes and Mats |
|
||||
|
38. |
Bhoga meant
for being offered to the Deity and "Prasad" of any kind including 'Mahaprasad of any kind' sold within the compound of Sri Jagannath Temple at Puri and
the Lingraj Temple and Ananta
Basudeva Temple at Bhubaneswar. |
When sold inside the compound of any temple
of religious institution governed under the Orissa
Hindu Religious Endowments Act, 1951. |
||||
|
39. |
Flattened or beaten rice, commonly known as Chuda/Hadumba, Puffed rice, commonly known as Mudhi, parched rice, commonly known as Kahi |
|
||||
|
40. |
Handicraft goods including hand made coir
products |
|
||||
|
41. |
Sabai Grass and rope made
thereof |
|
||||
|
42. |
Siali leaves,
Sal leaves and leaf plates and cups pressed or stitched |
|
||||
(Refer section 14)
LIST OF GOODS SUBJECT TO VALUE ADDED TAX ON TURNOVER
OF SALES OR PURCHASES
PART I
Goods Taxable at the rate of I%
|
Sl. No. |
Description
of goods |
|
(1) |
(2) |
|
1. |
Bullion |
|
2. |
Gold articles |
|
3. |
Precious stones including synthetic gems and
pearls of all types |
|
4. |
Silver articles |
PART II
Goods taxable at the rate of 4%
|
Sl. No. |
Name of
the commodity |
|
(1) |
(2) |
|
1. |
Agricultural implements not operated manually
or not driven by animal. |
|
2. |
All equipments for communications such as,
Private Branch Exchange (P.B.X.) And Electronic Private Automatic Branch
Exchange (E.P.A.B.X.) etc. |
|
3. |
All intangible goods like copyright, patent, REP license etc. |
|
4. |
All kinds of bricks including fly ash bricks,
refractory bricks and ashphaltic roofing, earthen
tiles |
|
5. |
All types of yarn other than cotton and silk
yam in hank and sewing thread |
|
6. |
Aluminium utensils and enamelled utensils |
|
7. |
Arecanut powder and betel nut |
|
8. |
Bamboo |
|
9. |
Bearings |
|
10. |
Beedi leaves |
|
11. |
Beltings |
|
12. |
Bicycles, tricycles, cycle rickshaws &parts |
|
13. |
Bitumen |
|
14. |
Bone meal |
|
15. |
Branded bread |
|
16. |
Bulk drugs |
|
17. |
Capital goods |
|
18. |
Castings |
|
19. |
Centrifugal, monobloc
and submersible pumps and parts thereto |
|
20. |
Chemical fertilizers, pesticides, weedicides
and insecticides |
|
21. |
Coffee beans and seeds, cocoa pod, green tea
leaf and chicory |
|
22. |
Coir and Coir products excluding coir
mattresses and hand made coir products |
|
23. |
Cotton and cotton waste |
|
24. |
Crucibles |
|
25. |
Declared goods as specified in section 14 of
the Central Sales Tax Act, 1956 |
|
26. |
Drugs and medicines |
|
27. |
Edible oils, oil cake and de-oiled cake |
|
28. |
Electrodes |
|
29. |
Exercise book, graph book and laboratory note book |
|
30. |
Ferrous and non-ferrous metals and alloys;
non-metals such as aluminium, copper, zinc and extrusions of those |
|
31. |
Fibres of all types and fibre waste |
|
32. |
Flour, atta, maida,
suji, besan, etc. |
|
33. |
Fried grams |
|
34. |
Gur, jaggery
and edible variety of rub gur |
|
35. |
Hand pumps and spare parts |
|
36. |
Herb, bark, dry plant, dry root, commonly
known as jari booti and
dry flower |
|
37. |
Hose pipes |
|
38. |
Hosiery goods |
|
39. |
Husk and bran of cereals |
|
40. |
Ice |
|
41. |
Incense sticks
commonly known as, agarbatti, dhupkathi
or dhupbati |
|
42. |
Industrial cables (High Voltage cables, XLPE
cables, Jelly filled cables, optical firbes) |
|
43. |
IT products including computers, telephone
and parts thereof, teleprinter and wireless
equipment and parts thereof, cellular phone, SIM card |
|
44. |
Kerosene oil sold through PDS |
|
45. |
Industrial inputs and packing materials as
may be notified by the State Government |
|
46. |
Napa Slabs (Rough flooring stones) |
|
47. |
Newars |
|
48. |
Ores and minerals |
|
49. |
Paddy, rice, wheat and pulses |
|
50. |
Paper and newsprint |
|
51. |
Pipes of all varieties including GI pipes, CI
pipes, ductile pipes and PVC pipes |
|
52. |
Plastic footwear |
|
53. |
Printed material including diary, calendar etc. |
|
54. |
Printing ink excluding toner and cartridges |
|
55. |
Processed and branded salt |
|
56. |
Pulp of bambo, wood and paper |
|
57. |
Rail coaches, engines and wagons |
|
58. |
Readymade garments |
|
59. |
Renewable energy devices and spare parts |
|
60. |
Safety matches |
|
61. |
Seeds |
|
62. |
Sewing machines |
|
63. |
Ship and other water vessels |
|
64. |
Silk fabrics (subject to abolition of rental agreement) |
|
65. |
Skimmed milk powder |
|
66. |
Solvent oils other than organic solvent oil |
|
67. |
Spices of all varieties and forms including
cumin seed, aniseed, turmeric and dry chilies |
|
68. |
Sports goods excluding apparels and footwear |
|
69. |
Starch |
|
70. |
Sugar and Khandsari |
|
71. |
Tamarind |
|
72. |
Textile fabric |
|
73. |
Tobacco |
|
74. |
Tractors, Threshers, harvesters and
attachments and parts thereof |
|
75. |
Transmission towers |
|
76. |
Umbrella except garden umbrella |
|
77. |
Vanaspati
(Hydrogenated Vegetable Oil) |
|
8. |
V getable oil including gingili oil, bran
oil |
|
79. |
Writing instruments |
Explanation: The goods "Sugar",
"Textile Fabric" and "Tobacco" appearing against SI. Nos.
70, 72 and 73 shall not be subject to levy of tax under this Act until such
goods are subject to levy of duties of excise under the Additional Duties of
Excise (Goods of Special Importance) Act, 1957.
PART III
Goods taxable at the rate of 12.5%
(All other goods except those specified in Schedule Q
(Refer section 14)
LIST OF GOODS SUBJECT TO TAX AT A SINGLE POINT
ON TURNOVER OF SALES OR PURCHASES
|
Sl.No. |
Description
of goods |
Rate of
tax as
applicable |
|
|
(2) |
(3) |
|
1. |
Liquor including Country Liquor |
20% |
|
2. |
Molasses |
20% |
|
3. |
Motor spirit including petrol, high speed
diesel and aviation turbine fuel and light diesel oil |
20% |
|
4. |
Narcotics |
20% |
|
5. |
Rectified spirit |
20% |
[Refer sub‑section (8) of section 2 and sub‑section
(5) of section 20]
|
Sl. No. |
Description
of goods |
|
|
(2) |
|
1. |
Capital goods purchased or paid prior to 1-4-2005. |
|
2. |
Capital expenditure incurred prior to the
date of registration under VAT |
|
3. |
Capital goods not connected with the business of the dealer |
|
4. |
Capital goods used in manufacture of goods or
providing services or trading activities which are not liable to tax under
VAT |
|
5. |
Capital goods used in energy /power including captive power. |
|
6. |
Capital or other expenditure on land, civil
structure or construction. |
|
|
Second hand purchase or subsequent purchases
of capital goods. |
|
8. |
Vehicles for conveyance and transportation. |
[Refer sub‑section (7) of section 501
PROCEDURE FOR RECOVERY OF TAX
PART I
GENERAL PROVISIONS
1. Definitions
In this Schedule, unless the context otherwise
requires,
(a) "certificate"
means a certificate received by the Tax Recovery Officer under rule 2;
(b) "defaulter"
means the assessee or dealer or any other person
mentioned in the certificate;
(c) "execution"
in relation to a certificate, means recovery of arrears in pursuance of the
certificate;
(d) "form"
means a form given in the Annexure to this Schedule;
(e) "movable
property" includes growing crops;
(f) "rule"
means a rule contained in this Schedule;
(g) "share
in a company" includes stock, debentures or bonds; and
(h) "Tax
Recovery Officer" means any officer of the Government not below the rank
of Sales Tax Officer who may be authorised by the
Government, by general or special notification, to exercise the powers of a Tax
Recovery Officer and Government may appoint more than one such officer and
specify their local jurisdiction.
2. Issue of certificate and the validity and amendment thereof
(1) Where
an assessee or dealer or any other person is in
default or is deemed to be in default in making a payment of tax or any other
amount due under this Act, the assessing authority may forward to the Tax
Recovery Officer, a certificate in Form 1 under his signature specifying the
amount of tax and any other amount due from the assessee
or dealer or any other person and the Tax Recovery Officer shall, on receipt of
such certificate, proceed to recover from such assessee,
dealer or other person the amount specified therein in accordance with the
provisions in this Schedule.
(2) The
assessing authority may issue a certificate under sub‑rule (1)
notwithstanding that proceedings for recovery of the amount by any other mode
has been taken.
(3) When
the assessing authority sends a certificate to the Tax Recovery Officer under
this rule, it shall not be open to the assessee or
dealer or such other person, as the case may be, to dispute before the Tax
Recovery Officer the correctness of assessment of the tax including interest,
if any, or of the order imposing penalty, and no objection to the certificate
on any ground shall be entertained by the Tax Recovery Officer.
(4) Notwithstanding
the issue of a certificate to the Tax Recovery Officer, the assessing authority
shall have power to withdraw or correct any clerical or arithmetical mistake in
the certificate by sending an intimation to the Tax Recovery Officer.
(5) Where
an assessee has property within the jurisdiction of
more than one Tax Recovery Officer to whom a certificate is sent by an
assessing authority
(a) is not
able to recover the entire amount by the sale of the property, whether movable
or immovable or both, within his jurisdiction; or
(b) is
of the opinion that, for the purpose of expediting or securing the recovery of
the whole or any part of the amount under this Schedule, it is necessary so to
do,
he may send the certificate or, where only a part of
the amount is to be recovered a copy of certificate certified in the prescribed
manner and specifying the amount to be recovered to a Tax Recovery Officer
within whose jurisdiction the assessee resides or has
property, and thereupon that Tax Recovery Officer shall also proceed to recover
the amount under the Schedule as if the certificate or the copy thereof had
been a certificate sent to him by the assessing authority.
3. Issue
of notice
When a certificate has been received by the Tax
Recovery Officer from the assessing authority for the recovery of arrears, the
Tax Recovery Officer shall cause to be served upon the defaulter a notice in Form
2 requiring the defaulter to pay the amount specified in the certificate within
fifteen days from the date of service of the notice and intimating that in
default, steps would be taken to realise the amount
under this Schedule.
4. When certificate may be executed
No step in execution of a certificate shall be taken
until the period of fifteen days has elapsed since the date of the service of
the notice under rule 3:
PROVIDED that if the Tax Recovery Officer is satisfied
that the defaulter is likely to conceal, remove or dispose of the whole or any
part of such of his movable property as would be liable to attachment in
execution of a decree of a Civil Court and that the realisation
of the amount of the certificate would in consequence be delayed or obstructed,
he may, at any time direct, for reasons to be recorded in writing, attachment
of the whole or any part of such property:
PROVIDED FURTHER that if the defaulter whose property
has been so attached furnishes security to the satisfaction of the Tax Recovery
Officer, such attachment shall be cancelled from the date on which such
security is accepted by the Tax Recovery Officer.
5. Mode
of recovery
If the amount mentioned in the notice is not paid
within the time specified therein or within such further time as the Tax
Recovery Officer may grant, he shall proceed to realise
the amount by one or more of the following modes, namely:
(a) by
attachment and sale of the defaulter's movable property;
(b) by
attachment and sale of the dafaulter's immovable
property;
(c) by
arrest of the defaulter and his detention in prison.
6. Interest, costs and charges recoverable
There shall be recoverable in the said proceedings in
execution of every certificate,
(a) interest
at the rate of eighteen per centum per annum from the day commencing after the
end of the period specified in rule 3; and
(b) all
charges incurred in respect of
(i) the service of notice upon the defaulter to pay the arrears
and of warrants and other processes; and
(ii) all
other proceedings taken for realising the arrears.
7. Purchaser's title
(1) Where
property is sold in execution of a certificate, there shall vest in the
purchaser merely the right, title and interest of the defaulter at the time of
the sale, even though the property itself be specified.
(2) Where
immovable property is sold in execution of a certificate and such sale has
become absolute, the purchaser's right, title and interest shall be deemed to
have vested in him from the time when the property is sold, and not from the
time when the sale becomes absolute.
8. Suit
against purchaser not maintainable on ground
of purchase being made on behalf of plaintiff
(1) No
suit shall be maintainable against any person claiming title under a purchase
certified by the Tax Recovery Officer in the manner laid down in this Part on
the ground that the purchase was made on behalf of the plaintiff or on behalf
of someone through whom the plaintiff claims.
(2) Nothing
in this rule shall bar a suit to obtain a declaration that the name of any
purchaser certified as aforesaid was inserted in the certificate fraudulently
or without the consent of the real purchaser or interfere with the right of a
third person to proceed against that property though ostensibly sold to the
certified purchaser, on the ground that it is liable to satisfy a claim of such
third person against the real owner.
9. Disposal
of proceeds of executions
(1) Whenever
assets are realised by sale or otherwise in execution
of a certificate, they shall be disposed of in the following manner, namely:
(a) there
shall first be paid to the assessing authority the costs incurred by him;
(b) there
shall, in the next place, be paid to the assessing authority the amount due under
the certificate in execution of which the assets were realised;
(c) if
there remains a balance after payment of the sums referred to in clauses (a)
and (b), there shall be paid to the assessing authority there from any other
amount recoverable under the procedure provided by this Act which may be due on
the date on which the assets were realised; and
(d) the balance,
if any, remaining after the payment of the amount, if any, referred to in
clause (c) shall be paid to the defaulter.
(2) If
the defaulter disputes any claim made by the assessing authority to receive any
amount referred to in clause (c), the Tax Recovery Officer shall determine the
dispute.
10. General bar to jurisdiction of Civil Court, save where fraud
alleged
Except as otherwise expressly provided in this Act,
every question arising between the assessing authority and the defaulter or
their representatives relating to the execution, discharge or satisfaction of a
certificate or relating to the confirmation or setting aside of a sale held in
execution of such certificate shall be determined, not by suit, but by the
order of the Tax Recovery Officer before whom such question arises:
PROVIDED that a suit may be brought in a Civil Court
in respect of any such question upon the ground of fraud.
11. Property
exempt from attachment
(1) All
such property, as is by the Code of Civil Procedure, 1908 (5 of 1908) exempted
from attachment and sale in execution of a decree of a Civil Court, shall be
exempt from attachment and sale under this Schedule.
(2) The
decision of the Tax Recovery Officer as to what property is so entitled to
exemption shall be conclusive.
12. Investigation
by Tax Recovery Officer
(1) Where
any claim is preferred to, or any objection is made to the attachment or sale
of any property in execution of a certificate on the ground that such property
is not liable to such attachment or sale, the Tax Recovery Officer shall
proceed to investigate the claim or objection:
PROVIDED that no such investigation shall be made
where the Tax Recovery Officer considers that the claim or objection was
designedly or unnecessarily delayed.
(2) Where
the property to which the claim or objection applies has been advertised for
sale, the Tax Recovery Officer ordering the sale may postpone it, pending the
investigation of the claim or objection, upon such terms as to security or
otherwise as the Tax Recovery Officer deems fit.
(3) The
claimant or objector shall adduce evidence to show that
(a) in the
case of immovable property, at the date of the service of notice issued under
this Schedule to pay the arrears; or
(b) in
case of movable property, at the date of the attachment, he had some interest
in, or was possessed of, the property in question.
(4) Where
upon the said investigation, the Tax Recovery Officer is satisfied that, for
the reason stated in the claim or objection, such property was not, at the said
date, in the possession of the defaulter or of some person in trust for him or
in the occupancy of a tenant or other person paying rent to him or that being
in the possession of the defaulter at the said date, it was so in his
possession, not on his own account or as his own property, but on account of or
in trust for some other person, or on his own account and partly on account of
some other person, the Tax Recovery Officer shall make an order releasing the
property, wholly or to such extent as he thinks fit, from attachment or sale.
(5) Where
the Tax Recovery Officer is satisfied that the property was, at the said date,
in the possession of the defaulter as his own property and not on account of
any other person, or was in the possession of some other person in trust for
him, or in the occupancy of a tenant or other person paying rent to him, the
Tax Recovery Officer shall disallow the claim.
(6) Where
a claim or an objection is preferred, the party against whom an order is made
may institute a suit in a Civil Court to establish the right which he claims to
the property in dispute, but subject to the result of such suit, if any, the
order of the Tax Recovery Officer shall be conclusive.
13. Removal of attachment on satisfaction or
cancellation of certificate
Where-
(a) the
amount due with costs and all charges and expenses resulting from the
attachment of any property or incurred in order to hold a sale, are paid to the
Tax Recovery Officer; or
(b) the
certificate is cancelled,
the attachment shall be deemed to be withdrawn and in
the case of immovable property the withdrawal shall, if the defaulter so
desires, be proclaimed at his expense and a copy of the proclamation shall be
affixed in the manner provided by this Schedule for a proclamation of sale of
immovable property.
14. Authority
entitled to attach and sale
The attachment and sale of property shall be made by
Tax Recovery Officer.
15. Defaulting
purchaser answerable for loss on resale
Any deficiency of price which may happen on a resale
by reason of the purchaser's default, and all expenses attending such resale,
shall be certified by the Tax Recovery Officer and shall, at the instance of
either the assessing authority or the defaulter, be recoverable from the
defaulting purchaser under the procedure provided by this Schedule:
PROVIDED that no such application shall be entertained
unless filed within fifteen days from the date of resale.
16. Adjournment
or stoppage of sale
(1) The
Tax Recovery Officer may adjourn any sale hereunder to a specified day and
hour.
(2) Where
a sale of immovable property is adjourned under sub‑rule (1) for a longer
period than one calendar month, a fresh proclamation of sale under this
Schedule shall be made unless the defaulter consents to waive it.
(3) Every
sale shall be stopped if, before the lot is knocked down, the arrears and costs
(including the costs of the sale) are tendered to the Tax Recovery Officer.
17. Private
alienation to be void in certain cases
(1) Where
a notice has been served on a defaulter under rule 3, the defaulter or his
representative in interest shall not be competent to mortgage, charge, lease or
otherwise deal with any property belonging to him except with the permission of
the Tax Recovery Officer, nor shall any Civil Court issue process against such
property in execution of a decree for the payment of money.
(2) Where
an attachment has been made under this Schedule, any private transfer or
delivery of the property attached or of any interest therein and any payment to
the defaulter of any debt, dividend or other moneys contrary to such
attachment, shall be void as against all claims enforceable under the
attachment.
18. Prohibition
against bidding or purchase by officer
No officer or other person having any duty to perform
in connection with any sale under this Schedule shall either directly or
indirectly, bid for, acquire or attempt to acquire any interest in the property
sold.
19. Prohibition
against sale on holidays
No sale under this Schedule shall take place on a
Sunday or other general holiday recognised by the
Government or any day which has been notified by the Government to be a local
holiday for the area in which the sale is to take place.
20. Assistance
by police
The Tax Recovery Officer may direct to the officer‑in‑charge
of the nearest police station for such assistance as may be necessary in the
discharge of his duties, and upon such direction, the officer‑in‑charge
shall depute a sufficient number of police officers for furnishing such
assistance.
PART II
ATTACHMENT AND SALE OF MOVABLE PROPERTY
21. Warrant
When any movable property is to be attached the Tax
Recovery Officer shall prepare a warrant under his signature in Form 3
specifying the name of the defaulter and the amount to be realised
and cause a copy of the warrant to be served on the defaulter.
22. Attachment
If, after service of the copy of the warrant, the
amount is not paid forthwith, the Tax Recovery Officer shall proceed to attach
the movable property of the defaulter.
23. Property
in defaulter's possession
Where the property proceeded against is movable
property (other than agricultural produce) in the possession of the defaulter,
it shall be attached by actual seizure and the Tax Recovery Officer shall keep
the property in his custody or in the custody of one of his subordinates who
shall be responsible for due custody thereof:
PROVIDED that when the property seized is subject to
speedy and natural decay or when the expense of keeping it in custody is likely
to exceed its value, the Tax Recovery Officer may take steps for sale of the
property at once.
24. Agricultural
produce
Where the property proceeded against is agricultural
produce, it shall be attached by affixing a copy of the warrant-
(a) where
such produce is growing crop, on the land on which such crop has grown; or
(b) where
such produce has been cut or gathered on the threshing floor or place for
treading out grain or the like, or fodder‑stack, on or in which it is
deposited,
and another copy on the outer door or on some other
conspicuous part of the house in which the defaulter ordinarily resides, or on
the outer door or on some other conspicuous part of the house in which he
carries on business or personally worked for gain; or in which he is known to
have last resided or carried on business or personally worked for gain; and the
produce shall, thereupon be deemed to have passed into the possession of the
Tax Recovery Officer.
25. Provisions
as to agricultural produce under attachment
(1) Where
agricultural produce is attached, the Tax Recovery Officer shall make such
arrangements for the custody, watching, tending, cutting and gathering thereof
as it may deem sufficient, and the assessing authority shall bear such amount
as the Tax Recovery Officer shall require in order to defray the cost of such
arrangements.
(2) Subject
to such conditions as may be imposed by the Tax Recovery Officer in this
behalf, either in the order of attachment or in any subsequent order, the
defaulter may tend, cut, gather and store the produce and do any other act
necessary for maturing or preserving it; and if the defaulter fails to do all
or any of such acts, the Tax Recovery Officer may, subject to the like
conditions, do all or any of such acts, and the costs incurred by him shall be
recoverable from the defaulter as if they were included in the certificate.
(3) Agricultural
produce attached as a growing crop shall not be deemed to have ceased to be
under attachment or to require re‑attachment merely because it has been
severed from the soil.
(4) Where
an order for the attachment of a growing crop has been made at a considerable
time before the crop is likely to be fit to be cut or gathered, the Tax
Recovery Officer may suspend the execution of the order for such time as he
thinks fit and may make a further order prohibiting the removal of the crop
pending execution of the order of attachment.
(5) A
growing crop, which from its nature does not admit of being stored, shall not
be attached under this rule at any time less than twenty days before the time
at which it is likely to be fit to be cut or gathered.
26. Debts
and shares, etc.
(1)
In
the case of-
(a) a
debt not secured by a negotiable instrument,
(b) a
share in a company, or
(c) other
movable property not in the possession of the defaulter except property
deposited in, or in the custody of any Court,
the attachment shall be made by a written order in
Form 4 prohibiting-
(i) in the case of debt, the creditor from recovering the debt
and debtor from making payment thereof until further order of the Tax Recovery
Officer,
(ii) in
the case of a share, the person in whose name the share may be standing from
transferring the same or receiving any dividend thereon, and
(iii) in
case of any other movable property (except as aforesaid) the person in
possession of the same from giving it over to the defaulter.
(2) A
copy of such order shall be affixed on some conspicuous part of the office of
the Tax Recovery Officer and another copy shall be sent, in the case of debt,
to the debtor; in the case of share to the proper officer of the company; and
in the case of other‑movable property (except as aforesaid), to the
person in possession of the same.
(3) A
debtor prohibited under clause (i) of sub‑rule
(1) may pay the amount of his debt to the Tax Recovery Officer and such payment
shall discharge him as effectually as payment to the party entitled to receive
the same.
27. Attachment
of decrees
(1) Where
the property proceeded against is a decree of a Civil Court for the payment of
money or for sale in enforcement of a mortgage or charge, the attachment shall
be made by the issue, to the Civil Court, of a notice in Form 5 requesting the
Civil Court to stay the execution of the decree unless and until
(i) the Tax Recovery Officer cancels the notice, or
(ii) the
assessing authority or the defaulter applies to the Court receiving such notice
to execute the decree.
(2) Where
a Civil Court receives an application under clause (ii) of sub‑rule (1),
it shall, on the application of the assessing authority or the defaulter and
subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908),
proceed to execute the attached decree and apply the net proceeds in
satisfaction of the certificate.
(3) The
assessing authority shall be deemed to be the representative of the holder of
the attached decree, and to be entitled to execute such attahced
decree in any manner lawful for the holder thereof.
28. Share
in movable property
Where the property proceeded against consists of the
share or interest of the defaulter in movable property belonging to him and
another as co‑owners, the attachment shall be made by a notice in Form 6
to the defaulter prohibiting him from transferring the share or interest or
charging it in any way.
29. Attachment
of negotiable instrument
Where the property is a negotiable instrument not
deposited in a Court nor in the custody of a public officer, the attachment
shall be made by actual seizure.
30. Attachment of property in custody of Courts or public officer
Where the property proceeded against is in the custody
of any court or public officer, the attachment shall be made by a notice in
Form 7 to such Court or Officer, requesting that such property, and any
interest or dividend becoming payable thereon, may be held subject to the
further orders of the Tax Recovery Officer by whom the notice is issued:
PROVIDED that where such property is in the custody of
a Court, any question of the title or priority arising, between the assessing
authority and any other person, not being the defaulter, claiming to be
interested in such property by virtue of any assignment, attachment or
otherwise shall be determined by such Court.
31. Attachment
of partnership property
(1) Where
the property proceeded against consists of an interest of the defaulter, being
a partner, in the partnership property, the Tax Recovery Officer may make an
order charging the share of such partner in the partnership property and
profits with payment of the amount due under the certificate, and may, by the
same or subsequent order, appoint a receiver of the share of such partner in
the profits, whether already declared or accruing and of any other money which
may become due to him in respect of the partnership, and direct accounts and
enquiries and make an order for the sale of such interest or such other order
as the circumstances of the case may require.
(2) The
other person shall be at liberty at any time to redeem the interest charged or
in the case of a sale being directed, to purchase the same.
32. Attachment
not to be excessive
The attachment by seizure shall not be excessive, that
is to say, the property seized shall be as nearly as possible proportionate to
the amount specified in the warrant.
33. Inventory
In the case of attachment of movable property by
actual seizure, the Tax Recovery Officer, shall, after seizure of the property,
prepare an inventory of all the property attached, specifying in it the place
where it is lodged or kept, and a copy of the inventory shall be delivered to
the defaulter.
34. Seizure
between sunrise and sunset
Attachment by seizure shall be made after sunrise and
before sunset, and not otherwise.
35. Power
to break open door, etc.
The Tax Recovery Officer may break open any inner or
outer door of any building and enter any building in order to seize any movable
property, after giving all reasonable opportunity to women to withdraw, if he
has reasonable grounds to believe that such building contains movable property
liable to seizure under the warrant and he has notified his authority and
intention of breaking open if admission is not given.
36. Sale
The Tax Recovery Officer may direct that any movable
property attached under this Schedule or such portion thereof as may seem
necessary to satisfy the certificate shall be sold.
37. Issue
of proclamation
When any sale of movable property is ordered by the
Tax Recovery Officer it shall issue a proclamation in Form 8 in the local
language of the intended sale, specifying the time and place of sale and
whether the sale is subject to confirmation or not.
38. Manner
of making proclamation
(1) Such proclamation shall
be made by beat of drum or other customary mode
(a) in the
case of property attached by actual seizure,
(i) in the
village in which the property was seized, or, if the property was seized in the
town or city, then in the locality in which it was seized, and
(ii) at
such other places as the Tax Recovery Officer may direct; and
(b) in the
case of property attached otherwise than by actual seizure, in such places, if
any, as the Tax Recovery Officer may direct.
(2) A
copy of the proclamation shall also be affixed in a conspicuous part of the
office of the Tax Recovery Officer.
39. Sale
after fifteen days
Except where the property is subject to speedy and
natural decay or when the expense of keeping it in custody is likely to exceed
its value, no sale of movable property under this Schedule shall, without the
consent in writing of the defaulter, take place until after the expiry of at
least fifteen days calculated from the date on which a copy of the sale
proclamation was affixed in the office of the Tax Recovery Officer.
40. Sale of
agricultural produce
(1) Where
the property to be sold is agricultural produce, the sale shall be held
(a) if
such produce is a growing crop, on or near the land on which such crop has
grown, or
(b) if such
produce has been cut or gathered, at or near the threshing floor or place for
treading out grain or the like, or fodder‑stack on or in which it is
deposited:
PROVIDED that the Tax Recovery Officer may direct the
sale to be held at the nearest place of public resort, if he is of opinion that
the produce is thereby likely to sell to greater advantage.
(2) Where, on the produce
being put up for sale,
(a) a fair
price, in the estimation of the Tax Recovery Officer, is not offered for it;
and
(b) the owner
of the produce or a person authorised to act on his
behalf, applies to have the sale postponed till the next day or, if a market is
held at the place of sale, till the next market day,
the sale shall be postponed accordingly, and shall be
then completed, whatever price may be offered for the produce.
41. Special
provisions relating to growing crops
(1) Where
the property to be sold is a growing crop and the crop from its nature admits
of being stored but has not yet been stored, the day of the sale shall be so
fixed as to admit of the crop being made ready for storing before the arrival
of such day, and the sale shall not be held until the crop has been cut or
gathered and is ready for storing.
(2)
Where the crop from its
nature does not admit of being stored or can be sold to a greater advantage in
an unripe stage, as in the case of green wheat, it may be sold before it is cut
and gathered, and the purchaser shall be entitled to enter on the land, and to
do all that is necessary for the purpose of tending or cutting or gathering the
crop.
42. Sale
to be by public auction
The property shall be sold by public auction in one or
more lots as the Tax Recovery Officer may consider advisable and if the amount
to be realised by sale is satisfied by the sale of a
portion of the property, the sale shall be immediately stopped with respect to
the remainder of the lots.
43. Procedure
of sale by public auction
(1) Where
movable property is sold by public auction, the price of each lot shall be paid
at the time of sale or as soon after as the Tax Recovery Officer directs, and
in default of payment, the property shall forthwith be resold.
(2) On
payment of the purchase money, the Tax Recovery Officer holding the sale shall
grant a certificate specifying the property purchased, the price paid and the
name of the purchaser and the sale shall become absolute.
(3) Where
the movable property to be sold is a share in goods belonging to the defaulter
and a co‑owner and two or more persons, of whom one is such co‑owner,
respectively bid the same sum for such property or for any lot, the bidding
shall be deemed to be the bidding of the co‑owner.
44. Irregularly not to vitiate sale, but any person injured may sue
No irregularity in publishing or conducting the sale
of movable property shall, vitiate the sale, but any person sustaining
substantial injury by reason of such irregularity at the hand of any other
person, may institute a suit in a Civil Court against him for compensation, or
(if such other person is the purchaser) for the recovery of the specific
property and for compensation in default of such recovery.
45. Negotiable
instruments and shares in a company
Notwithstanding anything contained in this Schedule
where the property to be sold is a negotiable instrument or a share in a
company, the Tax Recovery Officer may, instead of selling it by public auction,
sell such instrument or share through a broker.
46. Order for payment of coin or currency notes to the Tax Recovery
Officer
Where the property attached is current coin or
currency notes, the Tax Recovery Officer may, at any time during the
continuance of the attachment, direct that such coin or notes, or a part
thereof sufficient to satisfy the certificate, be paid over to the assessing
authority.
PART III
ATTACHMENT AND SALE OF IMMOVABLE PROPERTY
47. Attachment
Attachment of immovable property of the defaulter
shall be made by an order in Form 9 prohibiting the defaulter from transferring
or charging the property in any way and prohibiting all persons from taking any
benefit under such transfer or charge.
48. Service
of notice of attachment
A copy of the order of attachment shall be served on
the defaulter.
49. Proclamation
of attachment
The order of attachment shall be proclaimed at some
place on or adjacent to the property attached by beat of drum or other
customary mode, and a copy of the order shall be affixed on a conspicuous part
of the property and on the notice board of the office of the Tax Recovery
Officer.
50. Attachment
to relate back from the date of service of notice
Where any immovable property is attached under this
Schedule, the attachment shall relate back to, and take effect from, the date
on which the notice to pay the arrears, issued under this Schedule, was served
on the defaulter.
51. Sale
and proclamation of sale
(1) The
Tax Recovery Officer may direct that any immovable property which has been
attached or such portion thereof as may seem necessary to satisfy the
certificate, shall be sold.
(2) Where
any immovable property is ordered to be sold, the Tax Recovery Officer shall
cause a proclamation in Form 8 of the intended sale to be made in the local
language.
52. Content
of proclamation
A proclamation of sale of immovable property shall be
drawn up after notice to defaulter and shall state the time and place of sale
and shall specify, as fairly and accurately as possible,
(a) the
property to be sold;
(b) the
revenue, if any, assessed upon the property or any part thereof;
(c) the
amount for the recovery of which the sale is ordered; and
(d) any
other thing which the Tax Recovery Officer considers it material for a
purchaser to know, in order to judge the nature and value of the property.
53. Mode
of making proclamation
(1) Every
proclamation for the sale of immovable property shall be made at some place on
or near such property by beat of drum or other customary mode, and a copy of
the proclamation shall be affixed on a conspicuous part of the property and
also upon a conspicuous part of the office of the Tax Recovery Officer.
(2) Where
the Tax Recovery Officer so directs, such proclamation shall also be published
in the Official Gazette or in a local newspaper, or in both, and the cost of
such publication shall be deemed to be cost of the sale.
(3) Where
the property is divided into lots for the purpose of being sold separately, it
shall not be necessary to make a separate proclamation for each lot, unless
proper notice of the sale cannot, in the opinion of the Tax Recovery Officer,
otherwise be given.
54. Time of
sale
No sale of immovable property under this Schedule
shall, without the consent in writing of the defaulter, take place until after
the expiration of at least thirty days calculated from the date on which a copy
of the proclamation of the sale has been affixed on the property or in the
office of the Tax Recovery Officer, whichever is later.
55. Sale to
be by auction
The sale shall be by public auction to the highest
bidder and shall be subject to confirmation by the Tax Recovery Officer.
56. Deposit
by purchaser and resale in default
(1) On
every sale of immovable property, the person declared to be the purchaser shall
pay, immediately after such declaration, a deposit of twenty‑five per
centum of the amount of his purchase money, to the Tax Recovery Officer and in
default of such deposit, the property shall forthwith be resold.
(2) The
full amount of purchase money payable shall be paid by the purchaser to the Tax
Recovery Officer on or before the fifteenth day from the date of the sale of
the property.
57. Procedure
in default of payment
In default of payment within the period mentioned in
rule 56, the deposit may, if the Tax Recovery Officer thinks fit, after
defraying the expenses of the sales, be forfeited to the Government, and the
property shall be resold, and the defaulting purchaser shall forfeit all claims
to the property or to any part of the sum for which it may subsequently be
sold.
58. Authority
to bid
All persons bidding at the sale shall be required to
declare if they are bidding on their behalf or on behalf of their principals,
and, in the latter case, they shall be required to deposit their authority and
in default their bids shall be rejected.
59. Application to set aside sale of immovable property
on deposit
(1) Where
immovable property has been sold in execution of a certificate, the defaulter,
or any person whose interests are affected by the sale, may, at any time within
thirty days from the date of sale, apply to the Tax Recovery Officer to set
aside the sale, on his depositing-
(a) for
the payment to the assessing authority, the amount specified in the
proclamation of sale as that for the recovery of which the sale was ordered,
with interest thereon at the rate of twelve per centum per annum calculated
from the date of proclamation of sale to the date when the deposit is made; and
(b) for
the payment to the purchaser, as penalty, a sum equal to five per centum of the
purchase money, but not less than one rupee.
(2) Where
a person makes an application under rule 60 for setting aside the sale of his
immovable property, he shall not, unless he withdraws that application, be
entitled to make or prosecute an application under this rule.
60. Application to set aside sale of immovable property on ground
of non‑service of notice or irregularity
Where immovable property has been sold in execution of
a certificate, the assessing authority, the defaulter, or any person whose
interests are affected by the sale, may, at any time within thirty days from
the date of the sale, apply to the Tax Recovery Officer to set aside the sale
of the immovable property on the ground that notice was not served on the
defaulter to pay the arrears as required by this Schedule on the ground of a
material irregularity in publishing or conducting the sale:
PROVIDED that-
(a) no
sale shall be set aside on any such ground, unless the Tax Recovery Officer is
satisfied that the applicant has sustained substantial injury by reason of the
non‑service or irregularity; and
(b) an
application made by a defaulter under this rule shall be disallowed unless the
applicant deposits the amount recoverable from him in execution of the
certificate.
61. Setting
aside sale where defaulter has no saleable interest
At any time within thirty days of the sale the
purchaser may apply to the Tax Recovery Officer to set aside the sale on the
ground that the defaulter had no saleable interest in the property sold.
62. Confirmation
of sale
(1) Where
no application is made for setting aside the sale under the foregoing rules or
where such an application is made and disallowed by the Tax Recovery Officer,
he shall (if the full amount of the purchase money has been paid) make an order
confirming the sale, and thereupon, the sale shall become absolute.
(2) Where
such application is made and allowed and where, in the case of an application
made to set aside the sale on deposit of the amount and penalty and charges,
the deposit is made within thirty days from the date of sale, the Tax Recovery
Officer shall make an order setting aside the sale:
PROVIDED that no order shall be made unless notice of
the application has been given to the persons affected thereby.
63. Return
of purchase money in certain cases
When a sale of immovable property is set aside, any
money paid or deposited by the purchaser on account of the purchase together
with the penalty, if any, deposited for the payment to the purchaser, and such
interest as the Tax Recovery Officer may allow, shall be paid to the purchaser.
64. Sale
certificate
(1) Where
a sale of immovable property has become absolute, the Tax Recovery Officer
shall grant a certificate in Form 10 specifying the property sold and the name
of the person who at the time of sale is declared to be the purchaser.
(2) Such certificate shall
state the date on which the sale became absolute.
65. Postponement of sale to enable defaulter to raise amount due
under certificates
(1) Where
an order for the sale of immovable property has been made, if the defaulter can
satisfy the Tax Recovery Officer that there is reason to believe that the
amount of the certificate maybe raised by the mortgage or lease or private sale
of such property, or some part thereof or of any other immovable property of
the defaulter, the Tax Recovery Officer may, on his application, postpone the
sale of the property comprised in the order for sale, on such terms and for
such period as he thinks proper, to enable him to raise the amount.
(2) In
such case, the Tax Recovery Officer shall grant a certificate to the defaulter,
authorising him within a period to be mentioned therein,
and notwithstanding anything contained in this Schedule, to make the proposed
mortgage, lease or sale:
PROVIDED that all moneys payable under such mortgage,
lease or sale shall be paid, not to the defaulter, but to the Tax Recovery
Officer:
PROVIDED FURTHER that no mortgage, lease or sale under
this rule shall become absolute until it has been confirmed by the Tax Recovery
Officer.
66. Fresh
proclamation before resale
Every resale of immovable property in default of
payment of the purchase money within the period allowed for such payment, shall
be made after the issue of a fresh proclamation in the manner and for the
period hereinbefore provided for the sale.
67. Bid of
co‑sharer to have preference
When the property sold is a share of undivided immovable
property, and two or more persons, of whom one is a co‑sharer,
respectively bid the same sum for such property or for any lot, the bid shall
be deemed to be the bid of the co‑sharer.
PART IV
ARREST AND DETENTION OF THE DEFAULTER
68. Notice
to show cause
(1) No
order for the arrest and detention in civil prison of a defaulter shall be made
unless the Tax Recovery Officer has issued and served a notice in Form 11 upon
the defaulter calling upon him to appear before him on the date specified in the
notice and to show cause why he should not be committed to the civil prison,
and unless the Tax Recovery Officer, for reasons recorded in writing, is
satisfied
(a) that
the defaulter, with the object or effect of obstructing the execution of the
certificate has, after the receipt of the certificate in the office of the Tax
Recovery Officer, dishonestly transferred, concealed, or removed any part of
his property; or
(b) that
the defaulter has, or had since the receipt of the certificate in the office of
the Tax Recovery Officer, the means to pay the arrears of some substantial part
thereof and refuses or neglects or has refused or neglected to pay the same.
(2) Notwithstanding
anything contained in sub‑rule (1), a warrant for the arrest of the
defaulter may be issued by the Tax Recovery Officer if he is satisfied, by
affidavit or otherwise, that with the object or effect of delaying the
execution of the certificate, the defaulter is likely to abscond or leave the
local limits of the jurisdictions of the Tax Recovery Officer.
(3) Where
appearance is not made in obedience to a notice issued and served under sub‑rule
(1), the Tax Recovery Officer may issue a warrant in Form 12 for the arrest of
the defaulter.
(4) Every
person arrested in pursuance of a warrant of arrest under sub‑rule (2) or
sub‑rule (3) shall be brought before the Tax Recovery Officer as soon as
practicable and in any event within twenty‑four hours of his arrest
(exclusive of the time required for the journey):
PROVIDED that if the defaulter pays the amount entered
in the warrant of arrest as due and the costs of the arrest to the officer
arresting him such officer shall at once release him.
69. Hearing
When a defaulter appears before the Tax Recovery
Officer in obedience to a notice to show cause or is brought before the Tax
Recovery Officer under rule 68, the Tax Recovery Officer shall proceed to hear
the assessing authority and take all such evidence as may be produced by him in
support of execution by arrest, and shall then give the