Extract of MAHARASHTRA ACT No. XV OF 2016.
the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2016
(First published, after having received the assent of the Governor in the
" Maharashtra Government Gazette", on the 26th April 2016).
further to amend certain tax laws in operation in the State of Maharashtra.
WHEREAS it is expedient further to amend certain tax laws in operation in the State of Maharashtra, for the purposes hereinafter appearing ; it is hereby enacted in the Sixty-seventh Year of the Republic of India as follows :-
CHAPTER I
Preliminary
1. Short Title and Commencement
(1) This Act may be called the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2016.
(2) Save as otherwise provided in this Act,-
(a) sections 5, 6 and 8 shall come into force with effect from the 1st April 2016 ;
(b) sections 9, 13, 16 and 17 shall come into force with effect from the 1st May 2016 ;
(c) sections 2, 3, sub-section (1) of section 10 and sub-section (2) of section 15 shall come into force from such date as the State Government may by notification in the Official Gazette, appoint and different dates may be appointed for different provisions ;
(d) remaining sections shall come into force on the date of publication of this Act in the Official Gazette.
CHAPTER VI
Amendments to the Maharashtra Value Added Tax Act, 2002.
8. Amendment of Section 8 of Mah. IX of 2005
In section 8 of the Maharashtra Value Added Tax Act, 2002 (Mah. IX of 2005) (hereinafter, in this Chapter, referred to as " the Value Added Tax Act "), after sub-section (3C), the following sub-section shall be inserted, namely:
" (3D) The State Government may, by general or special order published in the Official Gazette and subject to such conditions, exceptions and restrictions as may be specified in the said order, exempt fully or partially from payment of tax with effect from the date specified in the order, the transfer of property in goods involved in the sizing and warping of yarn.".
9. Amendment of Section 10 of Mah. IX of 2005
In section 10 of the Value Added Tax Act, in sub-section (9), after the word brackets and figure "sub-section (2)" the words and figures "and Advance Ruling Authority, constituted under section 55 " shall be inserted.
10. Amendment of Section 16 of Mah. IX of 2005
In section 16 of the Value Added Tax Act,-
(1) in sub-section (3), for the existing proviso, the following provisos shall be substituted, namely :-
" Provided that, on finding that,-
(i) the application is not complete, or
(ii) the documents prescribed for grant of registration certificate have not been uploaded on the department's web site i.e. www.mahavat.gov.in, or
(iii) such documents are not consistent with the information contained in the application or are not legible, or
(iv) the prescribed conditions are not fulfilled,
the prescribed authority may pass the rejection order without giving an opportunity of being heard and shall intimate the applicant accordingly in the prescribed manner:
Provided further that, if the applicant complies with all the discrepancies intimated in the rejection order within thirty days from the date of intimation of rejection order and if such compliance is approved by the prescribed authority, then the application rejected earlier under the first proviso shall stand restored. However, the applicant shall be eligible to comply with the discrepancies under this proviso only once.";
(2) in sub-section (6), for the second proviso, the following proviso shall be substituted, namely :-
" Provided further that, where the Commissioner is satisfied that any person,-
(a) who has voluntarily got himself registered has not commenced business within six months from the date of registration, or
(b) has obtained registration by fraud or by misrepresentation of facts,
the Commissioner may, after giving the person a reasonable opportunity of being heard, cancel the registration certificate with effect from such date as he may fix in accordance with the rules.".
11. Amendment of Section 20 of Mah. IX of 2005
In section 20 of the Value Added Tax Act, in sub-section (4),-
(1) in clause (a), for the words "of ten months from the end of the year" the words " prescribed for furnishing the audit report under section 61 for the year " shall be substituted ;
(2) in the proviso, the words, brackets and letter "each of clause (a) or, as the case may be," shall be deleted.
12. Amendment of Section 23 of Mah. IX of 2005
In section 23 of the Value Added Tax Act, -
(1) after sub-section (2), the following sub-section shall be inserted, namely :-
" (2A) Where all the returns for the period commencing on or after the 1st April 2012 are filed by a registered dealer for any year within the period for filing revised return under clause (a) of sub-section (4) of section 20 and if the taxes as per these returns has also been paid within the said period and if the Commissioner is satisfied that the returns furnished by such dealer are correct and complete, he may assess the amount of tax due from such dealer on the basis of such returns :
Provided that, if no such order of assessment is made within four years from the end of the year to which such returns relate, then such returns shall be deemed to have been accepted.";
(2) after sub-section (5), the following sub-sections shall be inserted, namely :-
" (5A) After initiation of proceedings under sub-section (2), (3), (4) or, as the case may be, under sub-section (5), the Commissioner may, after considering all the documents or evidence produced by the dealer or, as the case may be, available with the Department, send his observations about the tax liability, by an intimation in the prescribed form, to the dealer before passing an assessment order under the respective sub-section. Such intimation shall be communicated in the prescribed manner to the dealer not later than six months before the date of expiry of the period of limitation for assessment under the respective sub-section under which the assessment order could be passed. If the dealer agrees with all the observations in the intimation and files the return or, as the case may be, a revised return under clause (c) of subsection (4) of section 20 and also makes the full payment of tax as per such returns and also applicable interest, then a confirmation order shall be passed in the prescribed manner under this sub-section and the assessment proceedings shall be deemed to have been closed.
(5B) The provisions of sub-section (5A) shall also be applicable to the assessment proceedings under sub-section (2), (3), (4) or, as the case may be. (5) pending on the 1st April 2016.".
13. Amendment of Section 26 of Mah. IX of 2005
In section 26 of the Value Added Tax Act, in sub-section (1), in clause (c). for the words " Additional Commissioner " the words " Additional Commissioner, Advance Ruling Authority " shall be substituted.
14. Insertion of Section 28A in Mah. IX of 2005
After section 28 of the Value Added Tax Act, the following section shall be inserted and shall be deemed to have been inserted with effect from the 1st April 2011, namely :-
" 28A. Determination of tax liability as per fair market price
During the course of any proceedings under the- Act, if the Commissioner is of the opinion that any transaction entered into by any dealer for sales price, which is below the prescribed fair market price for commodity for a prescribed class of dealers, so as to be liable, to pay tax less than the tax, which would have been otherwise become payable on such sales or purchases, then the Commissioner shall determine the tax liability as per the fair market price of such transaction while passing an order in the said proceedings.".
15. Amendment of Section 31 of Mah. IX of 2005
In section 31 of the Value Added Tax Act,-
(2) for sub-section (4), the following sub-section shall be substituted, namely :-
" (4) Any amount or any sum deducted on or after the 1st April 2016 in accordance with the provisions of this section and paid to the State Government may be,-
(i) claimed as a payment of tax by the person making the said supply to the employer, or
(ii) transferred as a credit to the sub-contractor in the prescribed manner, if sub-contract has been awarded, in respect of the Concerned contract.
The principal contractor shall be eligible to claim credit of such amount or sum, in the period in which the certificate for payment is furnished to him by the person deducting tax. The sub-contractor may claim the credit of such amount in the period in which the principal contractor has transferred the credit of such amount to him or in any subsequent period.";
(2) after sub-section (7), the following sub-section shall be inserted, namely:
" (8) Every employer liable to deduct tax at source shall in the prescribed manner apply to the Commissioner for allotment of a sales tax deduction account number. The number shall be mentioned in documents, statements and returns to be filed by him :
Provided that, if an employer is registered under the Act, then he shall not be required to apply under this sub-section.";
(3) in sub-section (9), after the words " in respect of the said supply " the following portion shall be added, namely :-
" and not transferred to the sub-contractor. Similarly, the sub-contractor shall not be called upon to pay tax himself to the extent to which the tax has been transferred to him.";
(4) after sub-section (9), the following sub-sections shall be added, namely:
" (10) The employer, who has deducted and paid any amount in any period under the provisions of this section, shall in the prescribed form and manner by such date as may be prescribed, file return for the said period.
(11) The employer who has furnished a return under this section, discovers any omission or incorrect statement therein, may furnish a revised return in respect of the period covered by the said return on or before the expiry of a period of nine months from the end of the year to which the return relates.
(12) Where the employer has failed to apply for the sales tax deduction account number, as required under sub-section (8), then the Commissioner may, after giving the employer a reasonable opportunity of being heard, impose upon him, by way of penalty, a sum upto the amount of tax deductible by the employer, for the period during which he had failed to obtain the sales tax deduction account number.
(13) Where the employer has failed to file the return as provided under subsection (10) within the prescribed time, the Commissioner shall impose on him a sum upto rupees five thousand by way of penalty.".
16. Substitution of Section 55 of Mah. IX of 2005
For section 55 of the Value Added Tax Act, the following section shall be substituted, namely :-
"55. Advance Ruling
(1) The applicant may make an application to the Commissioner for Advance Ruling on the questions prescribed.
(2) The applicant desirous of obtaining Advance Ruling under this section may make an application to the Commissioner in prescribed form and manner, stating any question prescribed under sub-section (1) on which the Advance Ruling is sought.
(3) The Commissioner shall constitute the Advance Ruling Authority, comprising three officials, not below the rank of Joint Commissioner by notification in the Official Gazette, for giving Advance Rulings. He may allot any of the questions or, as the case may be, all the questions prescribed under sub-section (1) to such Advance Ruling Authority.
(4) The Commissioner may also allot any application or question in such application made under section 56 and pending on the date of effect of this amendment or, as the case may be, any class of applications, to such Advance Ruling Authority.
(5) The Commissioner or, as the case may be, the Advance Ruling Authority shall, subject to rules, make Advance Ruling, within ninety days from the date of acceptance of the application by the Commissioner or, as the case may be, the Advance Ruling Authority.
(6) The applicant may withdraw his application within thirty days from the date of submission of the application.
(7) (a) No application shall be accepted where the question raised in the application,-
(i) is already pending before the Tribunal, Bombay High Court or, as the case may be, the Supreme Court in respect of the applicant, or
(ii) relates to a transaction or issue which is designed apparently for the avoidance of tax.
(b) The Commissioner or, as the case may be, the Advance Ruling Authority, may call for a report from the concerned officer, in the prescribed manner .
(c) The communication regarding the acceptance of the application shall be made to the applicant within thirty days from the date of submission of the application.
(d) No application shall be rejected under this sub-section unless an opportunity of being heard has been given to the applicant and where the application is rejected, reasons for such rejections shall be recorded in the order.
(8) (a) The Advance Ruling of the Commissioner shall be binding on all the officers, including the appellate authority or, as the case may be, on the Advance Ruling Authority in respect of the similarly situated persons.
(b) The Advance Ruling of the Advance Ruling Authority shall be binding on all the officers, including the appellate authority, other than the Commissioner, in respect of the similarly situated persons.
(9) The Commissioner or, as the case may be, the Advance Ruling Authority, may direct that the Advance Ruling shall not affect the liability of the applicant or, if the circumstances so warrant of any other person similarly situated, as respects any sale or purchase effected prior to the Advance Ruling.
(10) The appeal against the Advance Ruling order shall lie to the Tribunal and shall be subject to the conditions prescribed.
(11) Notwithstanding anything contained in this Act, no appeal shall be entertained under any circumstances whatsoever, after the date of expiry of period of thirty days from the date of communication of the Advance Ruling order to the applicant.
(12) The Advance Ruling order passed by the Advance Ruling Authority shall be subject to any directions or, as the case may be, instructions, issued under subsection (10) of section 10 by the Commissioner and any order passed by the Commissioner under section 56, as it existed.
(13) The Commissioner or, as the case may be, the Advance Ruling Authority may on his own motion, rectify any mistake apparent from the record and may rectify any order passed by it before the order so issued has been given effect to by the officer concerned. The applicant may also bring to the notice of the Commissioner or, as the case may be, Advance Ruling Authority, any such mistake within thirty days from the date of receipt of the said order :
Provided that, no such rectification shall be done unless the applicant has been given a reasonable opportunity of being heard :
Provided further that, an order under this sub-section shall be passed within a period of sixty days from the date of receipt of the Advance Ruling by the applicant.
(14) (a) The Commissioner may, on his own motion call for the record of any Advance Ruling issued by the Advance Ruling Authority to examine as to whether the said ruling is erroneous in so far as it is prejudicial to the interests of revenue. The Commissioner may, by serving on the applicant a notice in the prescribed form pass such order as he thinks just and proper.
(b) The Commissioner may also, for reasons to be recorded in writing on his own motion, review the Advance Ruling passed by him under this section and pass such order as he thinks just and proper. However, before initiating any action under this clause, the Commissioner shall obtain prior permission of the State Government. Such permission shall also be obtained when the Advance Ruling order is proposed to be made contrary to the order passed by the Commissioner under section 56.
(c) The Commissioner may direct that, the order of review shall not affect the liability of the person in whose case review is made in respect of any sale 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.
(d) No order shall be passed,-
(i) under clause (a), after the expiry of a period of six months from the end of the year containing the date of Advance Ruling ;
(ii) under clause (b), after the expiry of a period of three months from the end of the month in which the State Government gives permission to initiate action under clause (b) :
Provided that, no order under this sub-section shall be passed unless an opportunity of being heard is given to the applicant.
(15) The regulations regarding the procedure to be followed shall be formulated by the Commissioner.".
17. Deletion of section 56 of Mah IX. of 2005
Section 56 of the Value Added Tax Act shall be deleted.
18. Amendment of Section 70 of Mah. IX of 2005
In section 70 of the Value Added Tax Act, after sub-section (2), the following sub-section shall be added, namely:
" (3) Any person, who fails to furnish information as provided in this section within the prescribed period, shall be liable to pay by way of penalty a sum not exceeding rupees one lakh and in case of continuing default, for a period beyond two months, a further penalty of rupees one thousand for every day of such continuance.".
19. Amendment of Section 88 of Mah. IX of 2005
In section 88 of the Value Added Tax Act, in clause (a-1), after the words " Mega Unit" the words " and Ultra Mega Unit " shall be inserted.
20. Amendment of Section 89 of Mah. IX of 2005
In section 89 of the Value Added Tax Act, for sub-sections (3) and (4), the following sub-sections shall be substituted, namely :-
" (3) The invoice issued by a dealer, specified in sub-section (3A), shall contain a prescribed declaration in respect of the goods other than declared goods, covered by the Eligibility Certificate.
(3A) The restrictions specified in sub-section (3) shall be applicable to the following,-
(i) the Mega Unit or, as the case may be, the Ultra Mega Unit, holding a valid Identification Certificate ;
(ii) the Very Large Unit or, as the case may be, the Mega Unit, holding a Certificate of Entitlement, availing incentives by way of deferment of payment of tax under the Package Scheme of Incentives, 1993 ;
(iii) the immediate purchaser or, as the case may be, the subsequent purchasers, purchasing goods, originally manufactured by the dealers mentioned in clauses (i) and (ii).
(4) Where the dealer mentioned in sub-section (3A) fails to incorporate the prescribed declaration applicable to him, the Commissioner shall, after giving a reasonable opportunity of being heard, by order in writing impose upon him, in addition to any tax payable by him, a penalty equal to the amount of tax contained in the said invoice.".
CHAPTER VIII
Validation and Savings.
22. Validation and Savings.
(1) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal to the contrary, any assessment, review, levy or collection of tax in respect of sales or purchases effected by any dealer or person, or any action taken or thing done in relation to such assessment, review, levy or collection of tax under the provisions of the Maharashtra Value Added Tax Act, 2002 (hereinafter, in this section, referred to as "the Value Added Tax Act"), before the commencement of the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2016 (hereinafter, in this section, referred to as "the Amendment Act"), shall be deemed to be valid and effective as if such assessment, review, levy or collection or action or thing had been duly made, taken or done under the Value Added Tax Act, as amended by the Amendment Act, and accordingly,-
(a) all acts, proceedings or things done or taken by the State Government or by any officer of the State Government or by any other authority in connection with the assessment, review, levy or collection of any such tax, shall, for all purposes, be deemed to be, and to have always been done or taken in accordance with the law ;
(b) no suit, appeal, application or other proceedings shall lie or be maintained or continued in any Court or before any Tribunal, officer or other authority, for the refund of any tax so paid ; and
(c) no Court, Tribunal, officer or other authority shall enforce any decree or order directing the refund of any such tax.