Maharashtra Value Added Tax Act (2005) : Chapter V : Returns And Assessment, Etc.
CHAPTER V RETURNS AND ASSESSMENT, ETC.
20. (1)(a) Every registered dealer shall file correct ,complete, self-consistent return in such form, by such date, for such period and to such authority as may be prescribed. Different types of returns may be prescribed for different classes of dealers.
(b) The Commissioner may examine the return to ascertain whether it is complete and self-consistent. If the return is not complete or self-consistent, the Commissioner may serve on the dealer, within four months of date of filing of the return, a defect notice in the prescribed form. The said registered dealer shall correct the defects and submit to the prescribed authority a fresh, complete and self-consistent return within one month of the service of the defect notice:
Provided that the registered dealer who fails to submit a complete or self consistent fresh return within the said period of one month shall be deemed not to have submitted the return within the prescribed time as required under clause (a)
(2) Notwithstanding anything contained in sub-section (1), the
Commissioner may, subject to such terms and conditions, as may be
prescribed, permit any dealer, —
(a) to furnish returns for such different period, or
(b) to furnish a consolidated return relating to all or any of the places of
business of the dealer in the State for such period or periods, to
such authority, as he may direct.
(3) Every person or an unregistered dealer who is required to file a return
under any other provision of this Act, shall file such return for such period,
in such form, by such date and to such authority as may be prescribed and
the provisions contained in paragraph (b) of sub-section (1) shall apply to
such return as they apply to the return prescribed under paragraph (a) of
sub-section (1).
(4) Any person or dealer who, having furnished a return under sub¬
section (1), (2) or (3) discovers any omission or incorrect statement therein,
may furnish a revised return in respect of the period covered by the return
at any time before a notice for assessment is served on him in respect of
the period covered by the return or before the expiry of a period of six
months from the end of the year containing the period to which the return
relates, whichever is earlier'’.
21.“(1) Where a return is filed by the prescribed date by a registered dealer no notice calling the dealer for assessment in respect of the period covered
by the return shall be served on the dealer after two years from the end of the year containing the period to which the return relates.
(2) Where a registered dealer has not filed a return in respect of any period
by the prescribed date, no notice calling the dealer for assessment in
respect of the said period shall be served on the dealer after three years
from the end of the year containing the said period :
(3) Notwithstanding anything contained in sub-section (1) or (2) , a notice
for assessment in respect of any period ending on or before the 31st March
2008, may be served on the dealer within a period of four years from the
end of the year containing the said period.
22. (1) With a view to promoting compliance with the provisions of this Act, the Commissioner may arrange for audit of the business of any registered dealer. For the purpose of this section, the selection of dealers for audit shall be made from amongst the dealers,—
(a) who have not filed returns by the prescribed dates; or
(b) who have claimed refund of tax; or
© where the Commissioner is not, prima-facie, satisfied with
the correctness of any return filed by a dealer or is not
satisfied with any claim made, deduction claimed or turnover
disclosed in any return filed by the dealer; or
(d) who are selected by the Commissioner on the basis of the
application of any criteria or on a random selection basis; or
(e) where the Commissioner has reason to believe that detailed
scrutiny of the case is necessary.
(3) On the appointed day or, as the case may be, at anytime within the aforesaid period, any officer to whom the powers and duties under this section have been delegated, by the Commissioner, in writing, may conduct audit of the business.
(4)
(5) (a) During the course of the audit, the officer may require the dealer,—
(i) to afford him the necessary facility to inspect such
hooks of accounts or other documents as he may require and which may he available at such place,
(ii) to afford him the necessary facility to check or verify
the cash or stock which may be found therein. And
(iii) to furnish such information as he may require as to
any matter which may he useful for or relevant to any proceedings under this Act.
(b) The officer conducting the audit shall on no account remove or cause to he removed any books of accounts, other documents or any cash or stock.
23. (1)Where a registered dealer fails to file a return in respect of any period by the prescribed date, the Commissioner may assess the dealer in respect of the said period to the best of his judgement without serving a notice for assessment and without affording an opportunity of being heard;
Provided that, if after the assessment order is passed, the dealer submits the return for the said period along with evidence of payment of tax due as per the return or submits evidence of return for the said period having been filed before the passing of the assessment order along with evidence of payment of tax, due as per the return, then the Commissioner shall cancel by order in writing, the said assessment order.
Provided further that, such cancellation shall be without prejudice to any interest or penalty that may be levied in respect of the said period and after such cancellation, the dealer may be assessed in respect of the said period under the other provisions of this section.
Provided also that no order under this sub-section shall be passed after three years from the end of the year containing the said period.
(2) Where the return in respect of any period is filed by a registered dealer by the prescribed date and if the Commissioner considers it necessary or expedient to ensure that return is correct and complete and he thinks it necessary to require the presence of the dealer or the production of further documents, he shall serve on such dealer, a notice requiring him on a date and at a place specified therein, either to attend and produce of cause to be produced all documents on which such dealer relies in support of his return, or to produce such documents or evidence as is specified in the notice.
On the date specified in the notice, or as soon as may he thereafter, the Commissioner shall, after considering all the documents or evidence which may be produced, assess the amount of tax due from the dealer:
Provided that, if a registered dealer fails to comply with the terms of any notice issued under this sub-section, the Commissioner shall assess,
to the best of his judgement the amount of tax due from him:
Provided further that,( ) no order of assessment under this sub¬
section shall be made after the expiry of three years from the end of the
year containing the period to which return relates.
(3) Where a registered dealer has not filed the return in respect of any
period by the prescribed date, then the Commissioner may, at any time,
within three years from the end of the year containing the said period serve
on the dealer a notice requiring him to attend on a date and at a place
specified therein and after giving the dealer a reasonable opportunity of
being heard, proceed to assess, to the best of his judgment, the amount of
tax due from him:
Provided that, no order of assessment under this sub-section shall be made after the expiry of four years from the end of year containing the said period.
(4) Where the Commissioner has reason to believe that a dealer is liable to
pay tax in respect of any period, but has failed to apply for registration or
has failed to apply for registration within the time as required by or under
this Act, the Commissioner may at any time within five years from the end
of the year in which such period occurs, after giving the dealer a reasonable
opportunity of being heard, proceed to assess, to the best of his judgement,
where necessary, the amount of tax, if any, due from the dealer in respect
of that period, and any period or periods subsequent thereto:
Provided that, no order of assessment under this sub-section shall be made after the expiry of eight years from the end of the said financial year containing the said period.
(5)(a) During the course of any proceedings under section 64, in case of any dealer or person, if the prescribed authority is satisfied that tax has been sought to be evaded in respect of any period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding that any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer or person a notice in the prescribed form and a reasonable opportunity of being heard, initiate assessment of the dealer or person in respect of such transaction or claim.
(b) During the course of any proceedings under Sec. 64 if the prescribed authority is satisfied that the tax has been or is sought to be evaded, as provided under clause (i) by any dealer or person, the said authority may, after issuing a notice in the prescribed form and after giving a reasonable opportunity of being heard to such dealer or person proceed to assess such
dealer or person as provided in clause (i) in respect of any such transaction or claim relating to any period or periods and such authority shall, notwithstanding anything contained in section 59, be deemed to have the requisite jurisdiction and power to assess such dealer or person in respect of such transaction of sale or purchase or claim, covered by clause (i) and such assessment proceedings shall for all purposes of this Act, be deemed to have been transferred to such authority.
© The assessment proceedings under this sub-section shall be without
prejudice to the assessment proceedings in respect of the said period or
periods under any other provisions of this Act by any authority who
otherwise has the jurisdiction to assess such dealer or person in respect of
other transactions of sale or purchase or any other claim which are not
covered by clause (i) and clause (ii).
(d) The assessment under this sub-section shall be made separately in
respect of the transaction or claim relating to the said period or periods to
the best of the judgement of the prescribed authority where necessary and
irrespective of any assessment made under this sub-section, the dealer
may be assessed separately under the other provisions of this section in
respect of the said period or periods.
Provided that once the dealer or person is assessed under this sub¬section, no tax from such transaction or claim and penalty and interest, if any, consequent upon such tax shall be levied or demanded from such dealer or person, at the time of assessment to tax under the other provisions of this section in respect of the said period or periods relating to such transaction or claim. “
(6) If the Commissioner is of the opinion that, in respect of any period
covered by a return, any turnover of sales or of purchases has not been
disclosed, or that tax has been paid at a lesser rate, set-off has been
wrongly claimed, or deduction has been wrongly claimed, then
notwithstanding anything contained in section 21 or the other provisions of
this section Commissioner may at any time within five years from the end
of the year containing the said period, serve a notice in the prescribed form
on the dealer and proceed to assess him in respect of the said period after
giving him a reasonable opportunity of being heard:
Provided that the assessment order shall be passed, by the Commissioner to the best of his judgment, where necessary, within the said period of six years from the end of the uear containing the said period.
(7) Where a fresh assessment has to be made under this section to give
effect to any finding or direction contained in any order made under this
Act including an order made by the Tribunal or the High Court or the
Supreme Court, then, notwithstanding anything contained in this section,
such assessment shall be made within a period of thirty-six months from
the date of communication of such finding or, direction contained in the order, as the case may be, to the Commissioner.
Provided that, if a certified copy of the said order is supplied by the dealer concerned to the Commissioner earlier than the said date of communication, then the period of thirty six months shall be counted from the date of the said supply.
(8) The Commissioner may call for the record of any matter and conduct
an examination in respect of the same, in the manner as provided in sub¬
section (2), call for the books of accounts and other evidence in such matter
and after hearing the dealer concerned pass an appropriate order of
assessment in the matter notwithstanding the fact that in a similar matter,
the Tribunal has given a decision against the State Government or the
Commissioner, if in such matter the State Government or the
Commissioner has already filed an appeal before the appropriate forum
against the order of the Tribunal and such appeal is pending before such
appropriate forum:
Provided that, no order of recovery of the dues including the penalty or interest or forfeiture shall be passed by the Commissioner or the State Government in such case, pending decision by such forum, in the matter, and on decision of the appropriate forum, the Commissioner shall modify the order in accordance with the order of such forum after giving the dealer concerned, an opportunity of being heard.
(9) The Commissioner, may on an application in the prescribed form
made by any dealer, call for and examine the record of any proceeding in
which an assessment is pending and if he considers that having regard to
the nature of the case or the amount involved or for any other reason, it is
necessary or expedient to do so, he may issue such directions as he thinks
fit for the guidance of the assessing authority in charge of the case to
enable him to complete the assessment and such directions shall be
binding on the assessing authority :
Provided that, no direction which is prejudicial to the dealer shall he issued without giving the dealer a reasonable opportunity of being heard. However, no direction as to the lines on which any investigation connected with the assessment should be made shall be deemed to be a direction prejudicial to the dealer.
(10) A dealer or a person may be assessed under a single notice and by a
single order of assessment in respect of more than one period covered by a
return so long as all periods are comprised in one year.
24. (1) The Commissioner may, at any time within two years from the end of a financial year in which any order passed by him has been served, on
his own motion, rectify any mistake apparent on the record, and shall within the said period or thereafter rectify any such mistake which has been brought to his notice within the said period, by any person affected by such order:
Provided that, no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of a refund or interest payable on refund, unless the Commissioner has given notice in writing in the prescribed form to such person of his intention to do so and has allowed such person a reasonable opportunity of being heard. An application for rectification shall not be rejected on the ground that there is no mistake apparent on record unless the person concerned has been given a reasonable opportunity of being heard:
Provided further that, where a dealer has applied in the prescribed form within the said period of two years for rectification of the said order and specified in his application, the quantum by which the amount payable as per the said order should be reduced, then the Commissioner shall, without prejudice to the other provisions of this Act including levy of interest, stay the recovery of such quantum till the disposal of the application for rectification.
(2) Where any dealer or person has recorded in his books of accounts or, as
the case may he, has claimed in the returns that no tax is payable or that
the tax is payable at a reduced rate on any transaction of sale on account
of any declaration or certificate to be received from the purchasing dealer or
person and he has not produced such certificate or declaration before the
passing of the order of assessment under section 23 for any reason
whatsoever in which assessment order the claim is disallowed, then at any
time within two years from the end of the financial year in which the said
order has been served, he may, unless he has filed an appeal against the
said order, apply to the Commissioner for rectification of the order on the
ground that he has received such declaration or certificate and is in a
position to produce the same and thereupon the Commissioner shall hold
such inquiry as he may deem fit and after hearing the applicant, rectify the
assessment order if the application is in order:
Provided that, in respect of any assessment order sought to be rectified, only one application for rectification shall he entertained under this subsection.
(3) The provisions of sub—section (1) shall apply mntatis mutandis to the
rectification of a mistake by the Tribunal or an appellate authority as they
apply to the rectification of a mistake by the Commissioner:
Provided that, where any matter has been considered and decided in any proceeding by way of appeal or review in relation to any order or part of
an order, the authority passing the order of appeal or review, may, notwithstanding anything contained in this Act, rectify the order or part of the order on any matter other than the matter which has been so considered and decided.
(4) Where any such rectification has the effect of reducing the amount of
the tax or penalty or interest or the amount of forfeiture, the Commissioner
shall, refund any amount due to such person in accordance with the
provisions of this Act.
(5) Where any such rectification has the effect of enhancing the amount of
the tax or penalty or interest or the amount of forfeiture or reducing the
amount of the refund, the Commissioner shall recover the amount due
from such person in accordance with the provisions of this Act.
25. (1) After any order including an order under this section or any order in appeal, is passed under this Act, rules or notifications, by any officer or person sub-ordinate to him, the Commissioner may, of his own motion, or upon information received by him, call for the record of such order and examine whether,—
(a) any turnover of sales or purchases has not been brought to tax or has
been brought to tax at lower rate, or has been incorrectly classified, any
claim is incorrectly granted or that the liability to tax is understated, or
(b) in any case, the order is erroneous, in so for as it is prejudicial to the
interests of revenue, and after examination may by serving on the
dealer a notice in the prescribed form , pass an order to the best of his
judgment, where necessary,
(2) (i) For the purpose of the examination and passing of the order, the Commissioner may require by service of notice in the prescribed form, the dealer to produce or cause to be produced before him such books of accounts and other documents or evidence which he thinks necessary for the purposes aforesaid.
(ii) No order under this section shall be passed after the expiry of five years from the end of the year in which the order passed by the sub-ordinate officer has been served on the dealer.
(iii) Where in respect of any order or part of the said order passed by the sub-ordinate officer, an order has been passed by any appellate authority including the Tribunal, or such order is pending for decision in appeal, or an appeal is filed then whether or not the issues involved in the examination have been decided or raised in appeal, the Commissioner may within five years of the end of the year in which the said order passed by the subordinate officer has been served on the dealer, make a report to the said appellate authority including the Tribunal regarding his examination
or the report or the information received by him and the said appellate authority including the Tribunal shall thereupon, after giving the dealer a reasonable opportunity of being heard, pass an order to the best of its judgment, where necessary . For the purposes of section 26, such order shall be deemed to be an order passed in appeal.
(3) If the State Government or the Commissioner has initiated any
proceeding before an appropriate forum, against a point which is decided
against the State by a judgment of the Tribunal, then the Commissioner
may, in respect of any order, other than the order which is the subject
matter of the judgement, call for the record, conduct an examination as
aforesaid, record his findings, call for the said books of accounts and other
evidence, hear the dealer and pass an order as provided for under this
section as if the point was not so decided against the State, but shall stay
the recovery of the dues including interest, penalty or amount forfeited, in
so far as they relate to such point until the decision by the appropriate
forum and after such decision may modify the order of review, if necessary,
after giving the dealer a reasonable opportunity of being heard.
(4) No proceedings under this section shall he entertained on any
application made by a dealer or a person.
26.(1) An appeal, from every original order, not being an order mentioned in sub-section (2) of section 85 passed under this Act or rules or notifications, shall lie if the order is made,—
(a) by a Sales Tax Officer or an Assistant Commissioner, or any other
officer sub-ordinate thereto, to the Deputy Commissioner;
(b) by a Deputy Commissioner or Senior Deputy Commissioner, to the
Joint Commissioner; -
© by a Joint Commissioner, Additional Commissioner or the
Commissioner, to the Tribunal.
(2) In the case of an order passed in appeal by a Deputy Commissioner or a
Joint Commissioner, a second appeal shall lie to the Tribunal.
(3) Every order passed in appeal by the Tribunal under this section,
shall, subject to the provisions of sections 24 and 27, be final and every
order passed in appeal by any other appellate authority, shall, subject to
the provisions of sections 24, 25 and 27 be final.
(4) Subject to the provisions of sections 80 and 81, no appeal including
a second appeal shall be entertained unless it is filed within sixty days from
the date of the communication of the order appealed against.
(5) Subject to such rules of procedure as may be prescribed, every
appellate authority (both in the first appeal and the second appeal) shall
have the following powers, namely :—
(a) in an appeal against an order of assessment, it may confirm,
reduce, enhance or annul the assessment:
Provided that, where the appeal is filed before the Tribunal, the Tribunal may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;
(b) in an appeal against an order imposing a penalty, the appellate
authority may confirm or cancel such order or modify it in
accordance with the provisions of this Act;
© in an appeal against an order levying interest, the appellate
authority may confirm or cancel such order or modify it in
accordance with the provisions of this Act;
(d) in any other case, the appellate authority may pass such order
in the appeal as it deems just and proper:
Provided that, the appellate authority shall not enhance an assessment or a penalty or interest or sum forfeited or reduce the amount of set-off or refund of the tax, unless the appellant has been given a reasonable opportunity of showing cause against such enhancement or reduction.
Explanation. — While disposing of an appeal, the appellate authority may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before it by the appellant or that no order was made in the said proceedings regarding such matter.
(6) The Appellate authority or the Tribunal, as the ease may be, may,
while admitting the appeal, pending the disposal of the appeal, stay the
order appealed against in full or part, subject to such conditions or
restrictions as it may deem necessary including a direction for depositing of
a part or whole of the disputed amount by the appellant.
(7) Every appellate authority, including the Tribunal, in so far as it may,
shall decide the appeals pending before it by such priorities as may be
prescribed.
Provided that, if a person has attained the age of seventy-five years
or more and such person is the proprietor of the business, a partner in a firm or a director having substantial interest in a company being a body corporate, then on an application in the prescribed form made by him in this regard, any appeal made by the proprietary concern, partnership firm or the company shall be decided on priority to the exclusion of all other appeals.
27. (1) An appeal shall lie to the High Court from every order passed by the Tribunal including a judgment by way of advance ruling, if the High Court is satisfied that the case involves a substantial question of law.
(2) The Commissioner or the applicant before the Tribunal aggrieved by any
order passed by the Tribunal may file an appeal to the High Court and
such appeal under this sub-section shall be,—
(a) filed within one hundred and twenty days from the date on
which the order appealed against is received by the assessee
or the Commissioner;
(b) in the form of a memorandum of appeal precisely stating
therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial question of law
is involved in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated, and
the respondents shall, at the hearing of the appeal, be allowed to argue
that the case does not involve such question:
Provided that, nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and
deliver such judgment thereon containing the grounds on which such
decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which,—
(a) has not been determined by the Tribunal; or
(b) has been wrongly determined by the Tribunal, by reason of a
decision on such question of law as is referred to in sub¬
section (1)
(7) The payment of any amount due to be paid by the applicant before
the Tribunal or, as the case may be, by the Commissioner in accordance
with the order of the Tribunal in respect of which an appeal has been
preferred under this section, shall not be stayed by the High Court pending
the final disposal of such appeal, but if such amount is varied as the result
of the final disposal of the appeal, the difference shall be recovered or, as the case may be, refunded in accordance with the provisions of this Act.
(8) Where the High Court delivers a judgement in an appeal filed before
it, effect shall be given by the Tribunal to the order passed in the appeal on
the basis of a certified copy of the judgment:
Provided that, for the purposes of this sub-section, the Tribunal may accept a certified copy of the judgment furnished by the Commissioner or, as the case may be, by the dealer.
(9) Save as otherwise provided in this Act, the provisions of the Code of
Civil Procedure, 1908, relating to appeals to the High Court shall, as far as
may be, apply in the case of appeals under this section.
28. Where any Court or Tribunal or any Appellate authority or any other authority passes an order in appeal or review to the effect that any tax assessed under this Act or any other Act should have been assessed under the provisions of a law other than that under which it was assessed, then in consequence of such order, such turnover or part thereof may be assessed to tax at any time within five years from the date of such order, and where any assessment has already been made, the assessment shall be modified after giving the dealer a reasonable opportunity of being heard, notwithstanding that any provision regarding limitation applies to such assessment period.