Maharashtra Value Added Tax Act (2005) : Chapter IX : Proceedings
CHAPTER IX PROCEEDINGS
55. (1) Any registered dealer (…)may apply in the prescribed form and manner to the Tribunal for obtaining an advance ruling on the interpretation of any provision of this Act, rules or notifications in respect of a transaction proposed to be undertaken by him even though any question relating to the said provision has not arisen in any proceeding.
(2) If the Tribunal finds that the application does not involve any
important and substantial question of law, then the Tribunal may, after
giving the applicant a reasonable opportunity of being heard, reject the
application.
(3) If the application is admitted, then for determination of the question,
the President shall cause a Bench to be constituted, consisting of three (…)
members of the Tribunal, a senior practitioner entitled to appear before the
Tribunal to be nominated by the President and an Officer of the Sales Tax
Department not below the rank of Joint Commissioner, to be nominated by
the Commissioner. After hearing the applicant, the Bench shall pronounce
its advance ruling on the question specified in the application. If the
members of the Bench are divided, then the decision shall be the decision
of the majority. The pronouncement of the advance ruling shall, in so far as
it may be, made by the said Bench within four months of the receipt of the
application by the Tribunal.
(4) The advance ruling so pronounced shall be binding unless there is a
change of law on the basis of which the advance ruling has been
pronounced and accordingly no such question shall be entertained in any
proceeding by any authority appointed or constituted under this Act, save
as provided in section 27. (…)
(5) The provisions of this section shall come into effect form such date
as may be notified by the State Government in the Official Gazette.
(6) Advance Ruling under this section shall not be sought on any
question which can be posed under section 56.
56. (1) If any question arises, otherwise than in a proceedings before a Court or the Tribunal under section 55, or before the Commissioner has commenced assessment of a dealer under section 23, whether, for the purposes of this Act,—
(a) any person, society, club or association or any firm or any branch or
department of any firm, is a dealer, or
(b) any particular person or dealer is required to he registered, or
© any particular thing done to any goods amounts to or results in the
manufacture of goods, within the meaning of that term, or
(d) any transaction is a sale or purchase, or where it is a sale or
purchase, the sale price or the purchase price, as the case may be, thereof,
or
(e) in the case of any person or dealer liable to pay tax, any tax is
payable by such person or dealer in respect of any particular sale or
purchase, or if tax is payable, the rate thereof, or
(f) set-off can he claimed on any particular transaction of purchase and
if it can be claimed, what are the conditions and restrictions subject to
which such set-off can be claimed,
the Commissioner shall, subject to rules, make an order determining such question.
Explanation.-For the purposes of this sub-section, the Commissioner shall he deemed to have commenced assessment of the dealer under section 23 when the dealer is served with any notice by the Commissioner under that section.
(2) The Commissioner may direct that the determination shall not affect the
liability under this Act of the applicants or, if the circumstances so
warrant, of any other person similarly situated, as respects any sale or
purchase effected prior to the determination.
(3) The Commissioner, for reasons to be recorded in writing, may, on his
own motion, review an order passed by him under sub-section (1) or (2) and
pass such order thereon as he thinks just and proper. The Commissioner
may direct that the order of review shall not affect the liability of the person
in whose case the review is made in respect of any sate or purchase
effected prior to the review and may likewise, if the circumstances so
warrant, direct accordingly in respect of any other person similarly
situated:
Provided that, no order shall be passed under this sub-section unless the dealer or the person in whose case the order is proposed to be passed has been given a reasonable opportunity of being heard:
Provided further that, before initiating any action under this sub-section, the Commissioner shall obtain prior permission of the State Government.
(6) If any such question arises from any order already passed under this
Act or any earlier law, no such question shall be entertained for
determination under this section; but such question may be raised in
appeal against such order.
(7) The Commissioner, in so far as he may, shall decide the applications
for determination in the chronological order in which they were flied.
57. (1) If the Commissioner is satisfied that an arrangement has been
entered into between two or more persons or dealers to defeat the
application or purposes of this Act or any provision ot this Act, then the
Commissioner may by order declare the arrangement to be null and void as
regards the application and purposes of this Act. He may, by the said
order, provide for increase or decrease in the amount of tax payable by any
person or dealer who is affected by the arrangement whether or not such
dealer or person is a party to the arrangement, in such manner as the
Commissioner considers appropriate so as to counter act any tax
advantage obtained by that dealer from or under the arrangement.
(2) For the purposes of this section,—
(i) “arrangement” includes any contract, agreement, plan or understanding, whether enforceable in law or not, and all steps and transactions by which the arrangement is sought to be carried into effect;
(ii) “tax advantage” includes,—
a. any reduction in the liability of any dealer to pay tax,
b. any increase in the entitlement of any dealer to claim set-off
or refund,
c. any reduction in the sale price or purchase price receivable or
payable by any dealer.
(3) Before passing any order under this section, the Commissioner shall
afford a reasonable opportunity of being heard to any such person or dealer
whose tax advantage is sought to be counter acted.
58. Where any order under this Act is being passed in respect of a dealer for a part of a year for any reason whatsoever, then for the purposes of levy
of tax or exemption from the payment of whole or part of tax and for any
purposes incidental or ancillary thereto, any reference to any specified
amount or amounts in any section other than section 3 or in any rule or in
any notification issued under this Act in relation to a year shall, for the
purposes of such order, be construed as a reference to the said amount or
amounts as modified by multiplying each such amount or amounts by a
number of which the numerator is the number of months in the period for which the order is being passed and the denominator is twelve:
Provided that, where the period includes a part of a month, then if such part is of fifteen days or more, it shall be increased to one complete month and if such part is less than fifteen days, it shall be ignored
Provided further that, where such period is of less than fifteen days, it shall be increased to one complete month.
59. (1) The Commissioner may, after giving the parties a reasonable
opportunity of being heard in the matter, by order in writing after recording
his reasons for so, doing so transfer any proceedings or class of
proceedings under any provision of this Act, from himself to any other
officer and he may likewise transfer any such proceedings, including a
proceeding pending with any officer or already transferred under this
section, from any officer to any other officer whether with or without
concurrent jurisdiction or to himself:
Provided that, nothing in this section shall be deemed to require any such opportunity to be given where the transfer is from any officer to any other officer and the offices of both the officers are situated in Brihan Mumbai including Thane District or, as the case may be, in the same district as constituted under section 4 of the Maharashtra Land Revenue Code, 1966.
(2) For the purposes of this section, any proceedings shall be deemed to be
pending only when any authority, having appropriate jurisdiction, issues
notice under the provisions of this Act, rules or notifications and the
proceedings shall be deemed to be pending only after issue of such notice.
(3) Where no proceedings are pending before any authority, then any
authority having appropriate jurisdiction over a person or dealer, may
initiate and complete any proceedings whatsoever.
Explanation I. — In this section, the word “proceedings” in relation to any dealer means all proceedings under this Act in respect of any period, which may be pending on the date of such order or which may have been completed on or before such date, and also includes all proceedings under this Act which may be commenced after the date of such order in respect of the said period in relation to such dealer.
Explanation II. ( )
60. (1) No person shall collect any sum by way of tax in respect of sales
of any goods which are not taxable goods.
(2) No person, who is not a registered dealer, shall collect in respect of any sale of goods any sum by way of tax from any other person and no registered dealer shall collect any amount by way of tax or in tax in lieu of
tax in excess of the amount of tax payable by him on any sale of goods under the provisions of this Act.
Explanation. —For the purposes of this sub-section, where, the total amount of tax collected on the turnover of sales by a registered dealer exceeds the amount of tax payable by the dealer on such turnover, and if neither the said dealer nor the Commissioner can identify the individual transactions on which such excess collection has taken place, then, for the purposes of this sub-section, it shall be deemed that the excess collection is attributable in proportionate amounts to all the transactions comprising the turnover and accordingly it shall be deemed for the purposes of this section that an excess amount as aforesaid has been collected on each and every such transaction.
(3) Nothing in sub-section (2) shall apply where a person is required to
collect such amount of tax separately in order to comply with the
conditions and restrictions imposed on him under the provisions of any law
for the time being in force.
(4) Notwithstanding anything contained in sub-section (2), a dealer who is
not a works contractor and who has been permitted by the Commissioner
to pay a lump-sum in lieu of tax under any provision of this Act, rules or
notification shall not collect any sum by way of tax or in lieu of tax on the
sale of goods if made during the period to which such lump-sum payment
applies.
61. (1) Every dealer liable to pay tax shall,—
(a) if his turnover of sales or, as the case may be, of purchases cases,
exceed or exceeds rupees forty lakh in any year, or
(b) a dealer or person who holds license in
(i) Form P.L.L under the Maharashtra Distillation of Spirit and Manufacture of Potable Liquor Rules , 1966.
(ii) Form B-RL under the Maharashtra Manufacture of Beer and Wine Rules, 1966 or,
(iii) Form E under the Special Permits and Licence Rules, 1952.
(iv) Forms FL-I, FL-II, FL-III, FL-IV under the Bombay Foreign Liquor Rules, 1953
(v) Forms Cl-I, CL-II, CL-III, CL/FL/TOD III under the Maharashtra Country Liquor Rules, 1973.
get his accounts in respect of such year audited by an Accountant within the prescribed period from the end of that year and furnish within that period the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars and
certificates as may be prescribed.
Explanation. —For the purposes of this section, “Accountant” means a Chartered Accountant within the meaning of the Chartered Accountants Act, 1949 ..
(2) If any dealer liable to get his accounts audited under sub-section (1) fails to furnish a copy of such report within the time as aforesaid, the Commissioner may, after giving the dealer a reasonable Opportunity of being heard, impose on him, in addition to any tax payable, a sum by way of penalty equal to one tenth per cent. of the total sales or as the case may be, purchases or a sum of one lakh rupees, whichever is less.
Provided that the dealer fails to furnish a copy of such report within the period prescribed under sub-section (1) but files it within one month of the end of the said period and the dealer proves to the satisfaction of the Commissioner that the delay was on account of factors beyond his control, then no penalty under this sub-section shall be imposed on him.
62. (1) No assessment (including review, appeal, rectification, penalty and
forfeiture), notice, summons or other proceedings furnished, made or
issued or taken or purported to have been furnished, made or issued or
taken in pursuance of any of the provisions of this Act shall he invalid or
shall be deemed to be invalid merely by reason of any mistake. detect or
omission in such, assessment, notice, summons or other proceedings, if
such assessment, notice, summons or other proceedings are, in substance
and effect in conformity with or according to the intent, purposes and
requirements of this Act.
(2) The service of any notice, order or communication shall not be called in
question, if the said 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 which service has not been called in question at or in the earlier
proceedings commenced, continued or finalized pursuant to such notice,
order or communication.
(3) No order, including an order of assessment, review, appeal or
rectification or forfeiture passed under the provisions of this Act shall he
invalid merely on the ground that the action could also have been taken by
any other authority under any other provisions of this Act.