CHAPTER X : UTTARANCHAL VALUE ADDED SALES TAX ACT 2002-DRAFT
CHAPTER X MISCELLANEOUS
Section 66: Liability on Issuing False Certificate etc.
Notwithstanding any thing to the contrary contained elsewhere in this Act, and without prejudice to Section 58 and Section 61, a person who issues a false or wrong certificate or declaration prescribed under any provision of this Act or the Rules framed thereunder, to another person by reason of which a tax leviable under this Act on the transaction of purchase or sale made to or by such other person ceases to be leviable or becomes leviable at a concessional rate, shall be liable to pay on such transaction an amount which would have been payable as tax on such transaction had such certificate or declaration not been issued:
Provided that before taking any action under this Section, the person concerned shall be given an opportunity of being heard.
Explanation: where a person issuing a certificate or declaration discloses therein his intention to use goods purchased by him for such purpose as will make the tax not leviable or leviable at a concessional rate but uses the same for a purpose other than such purpose, the certificate or declaration shall, for the purpose of this Section, be deemed to be wrong.
Section 67: Objection to Jurisdiction
(1) No objection as to the territorial or pecuniary jurisdiction of any assessing authority shall be allowed by any appellate or revising authority or the Tribunal unless such objection was taken up before the assessing authority at the earliest possible opportunity and unless, in the opinion of the appellate or revising authority or the Tribunal, as the case may be, a failure of justice has in fact been occasioned thereby.
(2) Where any assessment is set aside or quashed merely on the ground of want of territorial or pecuniary jurisdiction of the assessing authority or on any other ground of a like nature not affecting the substance, any tax already paid by the assessee, to the extent of the liability admitted by him, shall not be refundable to him, in consequence of the assessment being so set aside or quashed.
Section 68: Certain Presumptions in Affixing Tax Liability
(1) Where any goods relating to business are-
(i) traced to a dealer and are found in a building or place but the dealer has not accounted for such goods in his books of account: or
(ii) traced to a dealer and are found in a vessel or vehicle, whether belonging to the dealer or not, such goods are not accompanied with the prescribed document; or
(iii) found in the custody of any person who claims to carry on any profession other than business but fails to prove that such goods belong to some other person or dealer,
it shall be presumed that such goods have been imported or purchased within the state by such dealer or person with a view to evade payment of tax on sale of such goods or if the goods found are for use in manufacture, the tax on the sale of goods to be manufactured by using such goods.
(2) Where at a check post or any other place inside the State it is found that any taxable goods for the purpose of business, are being imported without a form of declaration prescribed under Section 48, unless otherwise proved after furnishing proper and sufficient evidence, it shall be presumed that-
(i) such goods are being imported with a view to evade payment of tax under this Act and ;
(i) such goods are being imported with a view to evade payment of tax on sales of such goods under this Act:
Provided that if goods are meant for use in manufacture of any goods, it shall
be presumed that goods are being imported with a view to evade payment of tax on sale of goods to be manufactured by using such goods.
(3) Where any books or accounts or documents are found in any place or building or vessel or vehicle, unless the person in charge of such place or building or vessel or vehicle, after furnishing proper and sufficient evidence, proves that the same belong to some other person or dealer, such books, accounts or documents shall be deemed to belong to such person, and such person shall be deemed to be a dealer in respect of such transactions relating to business of purchase and sale of goods, as may be found in such books, accounts or documents.
(4) Where any transactions of sale and, or purchase are found recorded in any books or accounts or documents relating to a dealer and if such transactions are not found recorded in the books or accounts or documents maintained by the dealer in the ordinary course of business, he shall be deemed to be the owner of such goods and it shall be presumed that such goods have been imported or purchased within the State with a view to evade payment of tax on sale of such goods or if the goods recorded in such books, accounts or documents are for use in manufacture, the tax on sale of goods to be manufactured by using such goods.
(5) Where in respect of purchase or sale or any goods within the State, the challan or transport invoice referred to in sub-section (10) of Section 62 is required to be issued or obtained or to accompany the goods during transit and if such provisions have not been complied with or the goods in whole or part are not covered by such documents, it shall presumed that such goods have been sold, or as the case may be, purchased with a view to evade payment of tax on purchase or sale of such goods or, if the goods are for use in the manufacture, the tax on the sale of goods to be manufactured by using such goods.
(6) Where a dealer obtains any tax invoice or bill or cash memo from a registered dealer without making purchase of goods shown in such tax invoice, bill or cash memo, it shall be presumed that the dealer obtaining such documents has purchased goods shown in such document from other person with a view to evade payment of tax on purchase of such goods in the circumstances in which tax can not be levied on the person selling such goods and tax shall be payable under the provisions of this Act on such purchases by the dealer purchasing the goods.
Section 69: Burden of Proof
(1) In any assessment proceeding, when any fact is specially within the knowledge of the assessee, the burden of proving that fact shall lie upon him, and in particular, the burden of proving the existence of circumstances bringing the case within any of the exceptions, exemptions or relief under any provisions of this Act, or that he is eligible for input tax credit under Section 6, shall lie upon him and the assessing authority shall presume the absence of such circumstances.
(2) Where any dealer claims that he is not liable to pay tax in respect of any transaction of sales or purchases, the burden of proving the existence of facts and circumstances on the basis of which he claims such exemptions form liability shall lie upon him.
Section 70: Additional Evidence in Appeal
The assessee shall not be entitled to produce additional evidence, whether oral or documentary, before the appellate authority or the Tribunal except where the evidence sought to be adduced in evidence, which the assessing authority had wrongly refused to admit or which after exercise of due diligence was not within his
knowledge or could not be produced by him before the assessing authority, and in every such case, upon the additional evidence being taken on record, reasonable opportunity for challenge or rebuttal shall be given to the assessing authority.
Section 71: Indemnity
No Suit, prosecution or other legal proceedings shall lie against any servant of the Government for any thing which is in good faith done or intended to be done under this Act or rules made thereunder.
Section 72: Bar to Certain Proceedings
No assessment made and no order passed under this Act or the rules made thereunder by any authority shall be called in question in any Court, and save as is provided in this Act, no appeal or application for revision or review shall lie against any such assessment order.
Section 73: Certain Informations to be Confidential
(1) All particulars contained in any statement made, returned furnished or accounts or documents produced under the provisions of the Act or the rules made thereunder, or in any evidence given or affidavit or deposition made in the course of any proceedings under the Act or the rules made thereunder, or in any record of any proceedings relating to the recovery of a demand prepared for the purpose of the Act or the rules made thereunder shall be treated as confidential.
(2) Nothing in sub-section (1) shall apply to the disclosure of any such particulars:-
(i) for the purpose of any investigation of, or prosecution for any offence under this Act or under the Indian Penal Code, 1860, or under any other enactment for the time being in force; or
(ii) to any person acting in the execution of the Act or the rules made thereunder where it is necessary to disclose the same to him for the purposes of the Act or the rules made thereuner; or
(ii) occasioned by lawful employment under the Act or the rules made thereunder of any process for recovery of any demand; or
(iii) to a Civil Court in any suit to which the Government is a party which relate to any matters arising out or any proceedings under this Act or the rules made thereunder; or
(iv) occasioned by a lawful exercise by a public servant of his powers under the Indian Stamp Act, 1899, to impound an insufficiently stamped document; or
(v) to an officer of Central Government or the Government of any State for the purpose of enabling that Govt. to levy or realise any tax imposed by it; or
(vi) to an officer of the Central or the State Govt. for the purpose of making an enquiry against any Govt. servant; or
(vii) for purpose of audit of public accounts; or
(viii) for any other lawful purpose under this Act or the rules made there under.
(3) Nothing in this Section will apply to publication of any information relating to a class of dealer or class of transactions, if in the opinion of the Commissioner, it is desirable in the public interest, to publish such information.
(4) Notwithstanding any thing contained in this Section, if the State Govt. is of the opinion that it is necessary or expedient in the public interest to publish or disclose the names of any dealers or other persons and any of the particulars relating to any proceeding under this Act in respect of such dealers and persons, it may publish or disclose or cause to be published or disclosed such names and particulars in such manner as it thinks fit.
(5) 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 any offence connected with any proceeding under this Act, until the time for presenting an appeal to the appropriate appellate authority has expired with out an appeal having been presented or the appeal, if presented, has been disposed of.
Explanation: In the case of a firm, company or other association of persons,
the names of the partners of the firm, the directors, managing agents, secretaries, treasurers or managers of the company or the members of the association, as the case may be, may also be published or disclosed, if, in the opinion of the Govt., the circumstances of the case justify it.
Section 74: Powers to make Rules
(1) The State Government may make Rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such Rules may provide for-
(i) all matters expressly required or allowed by this Act to be prescribed;
(ii) the registration of persons engaged in the sale or purchase of goods and the imposing of conditions in respect of the same for the purpose of enforcing the provisions of this Act and fees for registration;
(iii) the determination of turnover for the purpose of assessment of tax under this Act;
(iv) compelling the submission of returns and the production of documents and enforcing the attendance of persons and examining them on oath or affirmation ;
(v) the appointment, duties and powers of officers appointed for the purposes of enforcing the provisions of this Act;
(vi) generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act;
(vii) refunds of amounts deposited under sub-section (1) of Section 40, the procedure for such refunds and the period within which they may be made;
(viii) the manner of putting seals under sub-section (7) of Section 42 and the manner in which and by whom the same shall be removed and for custody of sealed property and other goods and documents referred to in that sub-section;
(ix) the custody of goods seized under Section 43; and
(x) the matters which are to be or may be prescribed.
(3) The powers to makes Rules conferred by this Section shall be subject to the condition of the Rules being made effective after previous publication for a period of not less than four weeks:
Provided that if the State Government is satisfied that circumstances exist which render it necessary for it to take immediate action, it may make any Rule without such previous publication.
(4) All Rules made under this Section shall be published in the Gazette and upon such publication shall have effect immediately as if enacted in this Act.
(5) Every Rule made under this section shall, as soon as may be after it is made, be laid before the State Legislative Assembly while it is in session, for a total period of thirty days, extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of its publication in the Gazette subject to such modifications or annulments as the State Legislative Assembly may during said period make. However any such modification or annulment shall be without prejudice to the validity of any thing previously done or omitted to be done under that rule.
Section 75: Power to issue Notifications with Retrospective effect
Where the State Government is satisfied than it is necessary so to do in public interest, it may issue a notification where ever required under the provisions of this Act, so as to make it effective from a date not earlier than six months from the date of issuance of such notification:
Provided that no notification having the effect of increasing the liability to tax of a dealer shall be issued with retrospective effect under this Section.
Section 76: Transfer to Defraud Revenue void
Where, during the pendency of any proceeding under this Act , any person liable to pay any tax or other dues creates a charge on or transfers, any immovable property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such charge or transfer shall be void as against any claim in respect of any tax or other dues payable by such person as a result of the completion of the said proceedings:
Provided that nothing in this Section shall impair the rights of a transferee in good faith and consideration.
Section 77: Fees in certain Cases
(1) Subject to the provisions of sub-section (3), the fee payable on a memorandum of appeal or other applications under this Act filed or moved shall be as fallows:-
(a) On a memorandum of appeal under Section 51
(b) on a memorandum of appeal under Section 53
© On an application under Section 52
(d) On any other application-
(i) when addressed to the Commissioner or the revising authority or the Tribunal
(ii) when addressed to any other officer or authority
Two percent of the amount of tax, fee or penalty in dispute, subject to a minimum of one hundred rupees and a maximum of one thousand rupees.
Seven and a half percent of the amount of tax, fee or penalty in dispute subject to a minimum of five hundred rupees and a maximum of two thousand rupees.
One hundred rupees
Twenty rupees
Ten rupees
(2) The fee referred to in this Section and any provisions of this Act shall be payable in the manner prescribed, and proof of deposit shall be attached to the memorandum, or application as the case may be:
Provided that where the amount of fee payable does not exceed fifty rupees, the same may be paid in Court fee stamp.
(3) No fee shall be payable in respect of :-
(i) an application or a memorandum of appeal presented by the Commissioner or any other officer or authority appointed under this Act or the rules made thereunder, and
(ii) an application in which only information is sought and in which no specific relief is prayed for, and
(iii) an application under Section 52, seeking a decision only as to rate of tax applicable or the point at which the tax is payable.
Section 78: Power to Grant Installment
(1) Subject to such conditions and restrictions, including the conditions regarding furnishing security to the satisfaction of the assessing authority, as may be deemed fit to be imposed-
(i) the State Government may permit any dealer or other person, against whom any amount of tax penalty or other dues is out standing to pay the amount in such number of monthly installments, not exceeding twenty four, as it may consider proper in the circumstances of the case; and
(ii) the Commissioner may likewise permit any dealer or other person, against whom any amount of tax, penalty or other dues aggregating not more than one lak rupees is outstanding, to deposit the same in such number of monthly installments, not exceeding twelve, as he may consider proper in the circumstances of the case.
(2) Where such dealer or other person fails to furnish, within thirty days of the receipt of the order referred to in sub-section (1), adequate security to the satisfaction of the assessing authority concern for payment of outstanding amount, or fails to comply with the conditions and restriction imposed in such order, the amount due shall be recoverable at once.
Section 79: Moratorium for Payment of Tax
(1) Notwithstanding any thing contained in this Act, where the State Government is of the opinion that it is necessary so to do for increasing production of any goods or for promoting the development of any industry in the State generally or in any district or part of a district in particular, it may on application or otherwise in any particular case or generally, by notification declare that to the dealers running new units whose date of starting production falls on a date prior to the date of commencement of this Act and dealers owning manufacturing units which have undertaken expansion, diversification or modernization or backward integration prior to the date of commencement of this Act and if such dealers hold an eligibility certificate issued under the provisions of Section 4-A of the Uttaranchal Trade Tax Act 1948, Rules made or notifications issued thereunder, moratorium for payment of admitted tax in lieu of exemption from tax on sale of goods whether wholly or partly or at reduced rate, will be allowed subject to conditions given in this Section and such other conditions as may be prescribed or as the State Government may, by notification in the Gazette, specify:
(2) Dealers who have been granted facility of moratorium for payment of admitted tax before the commencement of this Act, such facility shall continue and shall be deemed to have been granted under this Act, and to that extent the provisions of Uttaranchal Trade Tax Act 1948, shall be deemed to be part of this Act. The facility granted under this Section shall be subject to such conditions as given in this Section and such other conditions as may be prescribed or as the State Government may, by notification in the Gazette, specify.
(3) Any application pending at the time of commencement of this Act, before the Commissioner of Trade Tax, for issue of orders for moratorium for payment of admitted tax under the Uttaranchal Trade Tax Act, 1948, shall be deemed to be pending under provisions of this Act before the Commissioner and same shall be disposed of according to the provisions of that Act as it was in force on the date on which the application was presented before the Commissioner.
(4) Notwithstanding any thing contained contrary to the provisions of this Act and in particular to the provisions of Section 4-A or sub-section (2-A) of Section 8 of the Uttaranchal Trade Tax Act,1948, rules made or notifications issued thereunder
(a) application for grant of eligibility certificate presented on a date prior to the date of commencement of this Act before the competent authority under that Act shall be deemed pending before the prescribed authority under this Act,
(b) dealer owning new units whose date of starting production falls before the date of commencement of this Act and dealers owning such units as have under taken expansion or diversification or modernization or backward integration before the date of commencement of this act, may apply for grant of eligibility certificate under provisions of Section 4-A of the Uttaranchal Trade Tax Act,1948, within the time prescribed under that Act before the prescribed authority under this Act.
(5) Applications for grant of eligibility certificate under sub-section (4) shall be disposed of by the prescribed authority according to the provisions of the Uttaranchal Trade Tax Act,1948, the rules made and notifications issued thereunder, as applicable on the date of commencement of this Act, and the dealer, if found eligible, shall be granted eligibility certificate, and such dealer shall be entitled to moratorium for payment of admitted tax to the extent and for the period provided in sub-section (6).
(6) Subject to other provisions of this Section dealers holding eligibility certificate either granted under the provisions of the Uttarnachal Trade Tax Act, 1948, before the date of the Commencement of this Act or who may be granted eligibility certificate under sub-section (5), shall be eligible for the facility of moratorium for payment of tax in lieu of exemption from the tax, in the following manner:
(i) in case of dealers who were enjoying exemption from tax for any period before the commencement of the Act, to the extent of One hundred and thirty percent of amount of exemption from tax mentioned in eligibility certificate less the aggregate of amount of exemption form tax as has been availed before the date of commencement of this Act, for the remaining period on that date out of the maximum period mentioned in the eligibility certificate
(ii) in case of dealers who had opted for moratorium for payment of tax in lieu of exemption from tax, to the extent of aggregate amount of hundred percent of the amount of exemption from tax mentioned in the eligibility certificate and fifty percent of the amount of fixed capital investment mentioned in the eligibility certificate less aggregate of such amount in respect of which facility of moratorium for payment of tax has been availed during the period before the commencement of this Act, for the remaining period on that date out of the maximum period mentioned in the order of moratorium.
(7) Under moratorium for payment of admitted tax under this Section, the payment of amount of tax for each assessment year, which a dealer would have been liable to pay as admitted tax payable on sale of goods if exemption had not been granted, less any amount of admitted tax payable according to the conditions of eligibility certificate for the assessment year, shall be deferred for a period of five years. Such period of five years shall be computed form 1st May of the assessment year subsequent to assessment year to which such amount of tax relates. The amount of tax for each assessment year for which moratorium is granted shall be paid by the dealer in lump sum within one month of the expiry of the period of moratorium:
Provided that the total amount payable shall be paid in lump sum within three months of its becoming payable when the moratorium ceases as per the provisions under sub-section (14) of this Section.
(8) Moratorium shall be allowed only to those manufacturers who hold eligibility certificate and who obtain certificate of moratorium from the prescribed authority.
(9) Moratorium shall be admissible in respect of tax on sale of goods mentioned in the eligibility certificate and shall not be available in respect of tax payable on purchases of goods, if any, and in respect of sales of goods for which eligibility certificate is not applicable.
(10) Moratorium shall not be admissible in respect of amount of tax assessed in excess of tax admittedly payable and shall be limited to the amount of tax and for the period mentioned in sub-section (6).
(11) Moratorium shall be available to only such manufactures who create first charge on its property in favour of the State Government sufficient to cover the amount of tax for which moratorium has been granted.
(12) Moratorium shall be subject to such conditions as the State Government may, by notification in the gazette prescribe.
(13) The Commissioner may cancel the certificate of eligibility in the following circumstances-
(i) where the dealer has discontinued business; or
(iii) where the dealer has acted in contravention of any conditions of eligibility certificate; or
(iv) where the dealer has misused the certificate of eligibility in any manner; or
(v) where the dealer has not paid any amount of tax or penalty due from him either under this Act or under the Central Sale Tax Act, 1956; or
(vi) where the dealer is involved in the evasion of tax under this Act or under the Central Sales Tax Act,1956
and in any such case the facility of moratorium shall be withdrawn with effect from the date on which the order is served on the dealer.
(14) The moratorium shall cease and the total amount shall become payable-
(i) on the date on which the dealer discontinues business; or
(ii) on the date on which the dealer violates any of the conditions subject to which eligibility certificate has been granted; or
(iii) on the date on which the order of cancellation of certificate of eligibility under sub-section (13) is served on the dealer,
and the amount shall be paid in lump sum within three months of its becoming payable.
(15) If the amount in respect of which moratorium has been granted, is not paid within time prescribed under sub-section (7) or, as the case may be under sub-section (14), the dealer shall, in addition to the amount due, be liable to-
(i) pay interest at the rate of 1.5 percent per month for the period of default, and
(ii) pay penalty which the assessing authority may deem fit, but not exceeding ten thousand rupees:
Provided that no penalty under this sub-section shall be levied without giving
the dealer an opportunity of being heard.
(16) The State Government may, by notification in the gazette, withdraw this facility of moratorium for payment of tax under this Section, where it is of the opinion that it is no longer in public interest:
Provided that this facility shall not be withdrawn retrospectively.
Explanation: The expression “new unit” and “unit which has undertaken expansion, diversification, modernization or backward integration” and “eligibility certificate” shall have the same meanings as are assigned to them under Section 4-A of the Uttaranchal Trade Tax Act, 1948.
Section 80: Facility for Sick Industrial Units
(1) Notwithstanding anything contained in Section 78, but subject to such conditions as may be deemed fit to be imposed, the State Government may allow the deferment of payment of any existing or future dues payable by an industrial unit under the provisions of this Act or allow payment of such dues in such number of installments as may be specified, if such industrial unit in declared a sick unit in accordance with the guidelines specified in this behalf by an authorised body constituted by the Central Government or the State Government in connection with rehabilitation of sick industrial units and is approved for rehabilitation by an approved agency, appointed by the Central Government or the State Government.
(2) Notwithstanding anything contained in Section 31, the State Government may set aside an order of assessment or penalty passed ex party against a sick unit and direct fresh disposal of the case in accordance with law.
Section 81: Power to collect Statistics
(1) If the Commissioner considers that for the purpose of better administration of this Act it is necessary so to do, it may, by issuing a circular and or by publication in the news paper or by notification in the Gazette, direct that statistics be collected relating to any matter dealt with, by or under this Act.
(2) Upon such direction being made, the Commissioner or any person authorised by it in this behalf, call upon all dealers or class of dealers or a particular dealer to furnish such information or returns or statements as may be stated therein relating to any matter in respect of which statistics are to be collected.
(3) Dealer or dealers shall be liable to furnish such information within the time allowed.