The following Act of the West Bengal Legislature, having been assented to by the . Governor, is hereby published for general information:-
West Bengal Act II of 2010
EXTRACT OF THE WEST BENGAL FINANCE ACT, 2010.
[Passed by the West Bengal Legislature.]
[Assent of the Governor was first Published in the Kolkata Gazette, Extraordinary, of the 31st March. 20 I0.]
An Act to amend the Bengal Amusements Tax Act, 1922, the West Bengal State Tax on Professions, Trades. Callings and Employments Act, 1979. the West Bengal Entertainment-cum-Amusement Tax Act. 1982, the West Bengal Sales Tax Act. 1994, and the West Bengal Value Added Tax Act, 2003.
WHEREAS it is expedient to amend the Bengal Amusements Tax Act, 1922(Ben. Act V of 1922.), the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979 (West Ben. Act VI of 1979.), the West Bengal Entertainment-cum-Amusement Tax Act, 1982 (West Ben. Act VI of 1982.), the West Bengal Sales Tax Act, 1994 (West Ben. Act XLIX of 1994.), and the West Bengal Value Added Tax Act, 2003 (West Ben. Act XXXVII of 2003.), for the purposes and in the manner hereinafter appearing;
It is hereby enacted in the Sixty-first Year of the Republic of India, by the Legislature of West Bengal, as follows:-
1. Short title and commencement.
(1) This Act may be called the West Bengal Finance Act, 2010.
(2) Save as otherwise provided, it shall come into force on such date, or shall be deemed to have come into force on such date, as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act.
6. Amendment of West Ben. Act XXXVII of 2003
In the West Bengal Value Added Tax Act, 2003,-
(1) in section 2, in clause (6), for the words "plant and machinery, other than civil structure, for use directly in the manufacture of goods in the State", the words "plant and machinery including components, spare parts and accessories of such plant and machinery, other than civil structure, for use directly in the manufacture of goods and pollution control equipments for use in the manufacture of goods, in the State," shall be substituted;
(2) in section 8B, in sub-section (2), in the Explanation.-
(a) in clause (d), for the word "Reconstruction", the word "Reconstruction;" shall be substituted; . .
(b) after clause (d), the following clauses shall be inserted:-
"(e) a notice of demand served to a dealer for realisation of tax, interest, late fee or penalty, if any, on an assessment made in respect of any period which ended on the 31st day of March, 2007 where the dealer had bona fide either not collected and paid no tax or collected and paid tax at a rate lower than the actual rate of tax applicable, on certain sale or on sale of certain goods, as the case may be and where the dealer claims by producing relevant evidences that such non-payment of tax or payment of tax at a rate lower than the actual rate is due to mistake of law during such year or part thereof; . . . .
(f) a notice of demand has been served to a dealer on or before the 31st day of March, 2007, for realization of penalty imposed under section 96, where the dealer has removed the cause for imposition of such penalty by way of making payment of tax which would have been avoided as referred to in sub-section (1) ot the said section."; .
(3) in section 16, after sub-section (5), the following sub-sections shall be inserted:-
'(6) Notwithstanding anything contained in sub-section (1) or sub-section (2) a registered dealer having liability to pay tax under the Act, who makes sales of such cooked foods, non-alcoholic drinks and beverages, manufactured by him, as are specified in Schedule CA, from his hotel, mandap, restaurant or any other eating-house in West Bengal, may at his option,-
(a) if his turnover of sales of such goods, as referred to in this subsection, in the year ending on the day preceding the date of coming into. force of this sub-section does not exceed fifteen lakh rupees; or
(b) if his turnover of sales of such goods, as referred to in this sub-section, on or after the date of coming into force of this sub-section does not exceed fifteen lakh rupees; or
(c) if his turnover of sales of such goods, as referred to in this sub-section, during the period from the commencement of the year in which he gets himself registered to the date of registration, does not exceed fifteen lakh rupees,
pay, in lieu of tax payable under sub-section (2), tax for each tax period of the year, at such compounded rate not exceeding four per centum as the State Government may, by notification, specify on his turnover of sales of such goods on which tax is payable, in the year for which such option is required to be exercised, subject to such restrictions and conditions as may be prescribed: -
Provided that such dealer shall not be entitled to issue tax invoice referred to in clause (48) of section 2 of the Act:
Provided further that if during the period of enjoyment of payment of tax at compounded rate, turnover of sales of such goods, as referred to in this sub-section, of a dealer exceeds fifteen lakh rupees, he shall
become ineligible to pay tax under this sub-section from the commencement of the month immediately following the month during which his turnover of sales of such goods, as referred to in this subsection, exceeded such sum.
Explanation I.-for the purpose of this. sub-section, the word "hotel" shall have the same meaning as assigned .to it in the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972 (West Ben. Act XXI of 1972).
Explanation II.- For the purpose of this sub-section, the word "mandap" means any immovable property as defined in section 3 of the Transfer of Property Act, 1882, and includes any furniture, fixtures, light fittings and floor coverings therein let out for consideration for organising any official, social or business function.
(7) Any registered dealer; who intends to opt for payment under sub-section (6) of this section, shall exercise his option for a year, or part of the year in which he gets himself registered, by making an application to the Commissioner in such manner, and within such time, as may be prescribed.;
(4) in section 22,-
(a) in sub-section (4),-
(i) in the first proviso, for the words "specified in this sub-section", the words "specified in this sub-section:" shall be substituted;
(ii) after the first proviso the following proviso shall be inserted:-
"Provided further that notwithstanding anything contained in clause (g), input tax credit or input tax rebate under that clause shall be allowed irrespective of whether purchases of such capital goods as components, spare parts and accessories of plant machinery, referred to in clause (6) of section 2, are capitalized in the books of account of a manufacturer or not.";
(b) in sub-section (11),-
(i) for the words "as may be prescribed.', the words "as may be prescribed:" shall be substituted;
(ii) the following proviso shall be inserted:-
"Provided that notwithstanding anything contained anywhere in the Act, input tax credit or input tax rebate shall be allowed to a registered dealer whose turnover of sale or contractual transfer price in a year does not exceed rupees two crore where such registered dealer claims input tax credit or input tax rebate on the strength of documents referred to in sub-section (5) notwithstanding that such registered dealer has not maintained such registers and accounts, as are required to be maintained as per the provisions of sub-section (1) of section 63."; .
(c) in the NEGATIVE LIST, for the entry in column (2) against serial No. 12 in column (1), the following entry shall be substituted:-
"Coal other than coal used as raw material in the manufacture of goods, furnace oil, or any other fuel, used for any purpose.";
(5) in section 24A, in sub-section (1), for the words, figures and letters "by the 30th day of September, 2008 'the words, figures and letters " by the 31st day of December, 2008" shall be deemed to have been substituted with effect from the 30th day of September, 2008;
(6) in section 30E, in sub-section (1A), for the words "rupees one crore in a year", the words "rupees one crore and fifty lakh in a year" shall be substituted;
(7) in section 32, in sub-section (3), for the words "at any time before the date prescribed for furnishing of the next return by him", the words ''within six English calendar months beginning from the month immediately following the month in which such return is due to be furnished" shall be substituted;
(8) in section 43,- .
(a) for the marginal note, the following marginal note shall be substituted:-
"Audit of accounts and assessment in certain cases.";
(b) in sub-section (1),-
(i) for the words "the day of selection", the words "the day of selection:" shall be substituted; .
"Provided that where selection of a registered dealer under this sub-section has been made in respect of any year or part thereof and where in respect of such year or part thereof, an assessment has already been made under sub-section (1) of section 46 or an "assessment made under sub-section (2) of section 45 has not been revoked under sub-section (3) or sub-sectIon (4) of section 45, such registered dealer for such year or part thereof shall be deemed to have not been selected under this sub-section.";
(c) in sub-section (3), for the words, figure and brackets "issued under sub-section (1)", the words, figure and brackets "issued under sub-section (2)" shall be substituted; .
(d) after sub-section (4), the following sub-sections shall be inserted:-
"(5) Where, from the finding contained in the report prepared under sub-section (3), it appears to the Commissioner that in the return furnished by such registered dealer under section 32 in respect of a year or part of such year,- .
(a) certain sale price or part thereof, contractual transfer price or part thereof, has not been disclosed in such return, or has escaped levy of tax thereon at the appropriate rate, erroneously or otherwise, or
(b) certain purchase price or part thereof bas not been disclosed in such return, or has escaped levy of tax thereon at the appropriate rate, erroneously or otherwise, or
(c) the deductions from the turnover of sales were claimed under sub-section (1) of section 16 in such return, erroneously or otherwise, in excess of what is admissible under sub-section (1) of that section, or the deductions so claimed in such return are not supported by evidence referred to in sub-section (1) of that section, or
(d) excess amount of input tax credit or input tax rebate has been enjoyed by the dealer for that period, and no reverse credit for such excess amount bas been made by such dealer, or
(e) the information furnished are not correct and complete, or
(f) there are certain other discrepancies.
which has resulted in reduction of the amount of net tax payable by such registered dealer or the State Government has suffered loss of revenue on any of the grounds referred to in clause (a), or clause (b) or clause (c), or clause (d), or clause (e), or clause (f), of this sub-section on account of such registered dealer in respect of such year or part of such year, the Commissioner shall, in accordance with the provision of sub-section (1) of section 46, assess to the best of his judgment the amount of net tax payable by such dealer in respect of such year or part thereof, as he may deem fit and proper, not only for the reason as described in this sub-section read with clause (ca) of sub-section (1) of section 46 but also for any other reason as contained in other clauses of the said sub-section (1) of section 46 where it is required to do so and also act according to the provision of sub-section (2) and sub-section (3), of section 46:,
Provided that where the assessment, as referred to in this sub-section, has to be made under sub-section (1) of section 46 in respect of such year or part of such year for which the assessment is deemed to have already been made under sub-section (1) of section 47, the Commissioner shall make such assessment in respect of such year or part of such year in accordance with the provisions of the proviso to sub-section (3A) of section 47.
(6) Where the report as referred to in sub-section (3) does not contain any such finding as described in clause (a), or clause (b), or clause (c), or clause (d), or clause (e), or clause (f), of sub-section (5), the Commissioner shall, in accordance with provision of sub-section (1) of section 46, assess to the best of his judgment the amount of net tax payable by such dealer in respect of such year or part thereof, as he may deem fit and proper, for the reason as contained in clauses other than in clause (ca) of sub-section (1) of section 46 where it is required to do so and also to act according to the provisions of sub-section (2) and sub-section (3), of section 46.";
(9) in section 46, in sub-section (1),- .
(a) in clause (c), the words and figures "or upon report received under section 43," shall be omitted;
(b) after clause (c), the following clause shall be inserted:-
"(ca) the report, prepared under sub-section (3) of section 43, contains the finding as referred to in sub-section (5) of section 43; or";
(c) for clause (g), the following clause shall be substituted:-
"(g) a registered dealer other than a dealer enjoying deferment, exemption or remission of tax under clause (a), or clause (b), or clause (c), of sub-section (1) of section 118, as the case may be, at his option, does not carry forward the excess amount of input tax credit or input tax rebate, which has accumulated during a year, to a return period in the following year; or";
(d) for the first proviso, the following proviso shall be substituted:-
"Provided that where pursuant to the notice issued under this sub-section for making assessment of net tax payable by a dealer in respect of any year or part thereof for the reason of clause (aa) or clause (b), as the case may be, the dealer voluntarily makes payment of net tax, interest and late fee, in full, payable according to the return which has already been furnished by him in respect of such year or part thereof and an amount as a penalty, for non-payment of tax, interest and late fee referred to in clause (aa) or clause (b) of this sub-section in respect of such year or part thereof, of a sum equal to ten per centum of the amount of net tax, interest and late fee payable in deficit before making full payment of tax, interest and late fee according to such return and furnishes, within the time specified in such notice, the receipted challan(s) evidencing full payment of net tax, interest and late fee according to such return, the Commissioner shall withdraw such notice issued under this sub-section and shall not proceed to make assessment in terms of clause (aa) or clause (b), as the case may be, of this sub-section:";
(e) in the third Proviso, for the words "appeal or revision.", the words "appeal or revision:" shall be substituted; .
(I) after the third proviso, the following provisos shall be inserted:-
"Provided also that no assessment proceedings by issue of a notice under sub-section (1) shall be initiated by the authority other than the authority referred to in section 43, where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts, registers and documents of the dealer selected under sub-section (1) of section 43:
Provided also that where the Commissioner has, under sub-section (4) of section 3, delegated his power to make assessment to any authority, such authority shall not, where no scrutiny in accordance With the provision of sub-section (1) of section 41 of a return furnished by a registered dealer has been caused or where no notice, as referred to in sub-section (2) of section 41, has been issued to such dealer within the statutory time-limit referred to in sub-section (3) of section 41, proceed to make assessment of net tax payable by a dealer under this sub-section unless he states, in writing, to the Commissioner the reason or reasons, referred to in clause or clauses of this sub-section, for which he wants to proceed for making such assessment and obtains the approval of the Commissioner as regards proceeding with such assessment:
Provided also that where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts, registers and documents of the dealer selected under sub-section (1) of section
43, the provision of the fifth proviso shall not apply.";
(10) in section 47,- ,
(a) in sub-section (3),-
(i) in clause (c), for the words "such dealer,", the words "such dealer, or; shall be substituted;
(ii) after clause (c), the following clauses shall be inserted:-
"(d) the information furnished are not correct and complete, or
(e) there are certain other discrepancies, ";
(iii) for the words, letters and brackets "clause (a), or clause (b), or clause (c), of this sub-section", the words, letters and brackets "clause (a), or clause (aa), or clause (b), or clause (c), or clause (d), or clause (e), of this sub-section" shall be substituted;
(b) after sub-section (3), the following sub-section shal be inserted:-
"(3A) Where an assessment is deemed to have been made under sub-section (1) in respect of a registered dealer relating to any year or part of a year and where the report, prepared under sub-section (3) of section 43 in respect of such year or such part of a year, contains the finding as referred to in sub-section (5) of section 43, the Commissioner shall, within a period of six months from the date of preparing such report, after giving such registered dealer a reasonable opportunity of being heard, reopen such assessment by an order in writing in the prescribed manner for making fresh assessment of tax under sub-section (1) of section 46:
Provided that the fresh assessment under sub-section (1) of section 46 for such year or such part of a year shall be made, notwithstanding the provisions of section 49, on any date within six months from the date of passing the order in writing for reopening the assessment in respect of such year or such part of a year, which is deemed to have been made in accordance with the provisions of sub-section (1) of this section.";
(11) in section 49, in sub-section (1), for the second proviso, ,the following provisos shall be substituted:-
"Provided further that where, an assessment under clause (ca) of sub-section (1) of section 46 is required to be made by the Commissioner in respect of a year or part of a year, such assessment shall, notwithstanding the provisions of this sub-section, be made within the date, as referred to in this sub-section, after which no assessment may be made or at any time within six months from the date of preparing the report under sub-section (3) of Section 43, whichever is later:
Provided also that the provisions of the second proviso shall apply where an assessment under sub-section (1) of section 46 is required to be made in accordance with the provision of sub-section (5) of section 43 not only for the reason as contained in clause (ca) of sub-section (1) of section 46 but also for any other reason as contained in other clauses of that sub-section of section 46:
Provided also that the provisions of the second proviso shall apply where an assessment under sub-section (1) of section 46 is required to be made in accordance with the provision of sub-section (6) of section 43:";
(12) section 61 shall be renumbered as sub-section (1) of that section,-
(a) in sub-section (1) so renumbered, for clause (ab), the following clause shall be substituted:-
"(ab) to a registered dealer, whose all sales of goods in the course of export out of India within the meaning of section 5 of the Central Sales Tax Act, 1956, to the total sales equal to or exceed seventy-five per centum in a return period, such per centum of input tax credit available during such return period as referred to as 'A' in sub-section (17) of section 22 after adjustment of reverse credit, if any, as corresponds to all sales of goods referred to in this sub clauses in the course of export out of India within the meaning of section 5 of the Central Sales Tax Act, 1956, to total sales in the return period.";
(b) after sub-section (1) so renumbered, the following sub-section shall be inserted:-
"(2) The Commissioner may, for reasons to be recorded in writing, withhold the refund till such time as he deems fit and inform the dealer of the reason for withholding the refund.";
(13) in Schedule A,- ., '
(a) after serial No. 11A in column (1) and the entry relating thereto in column (2), the following serial No- In column (1) and the entry relating thereto in column (2) shall be inserted:-
"11B, Dried flowers and other parts of dried plants, other than those specified elsewhere in this Schedule or in any other Schedule.";
(b) after serial No. 14 in column (1) and the entry relating thereto, column (2), the following serial No. in column (1) and the entry relating thereto in column, (2) shall be inserted:-
"14A. Fuel made from solid waste procured from any local self- government or from any person on its behalf.
(c) after serial No. 24 in column (1) and the entry relating thereto in column (2), the following serial No. in column (1) and the entry relating thereto in column (2) shall be inserted:-
"24A. Strings for musical instruments.";
(d) for the entry in column (2) against serial No. 37B in column (1), the following entry shall be substituted:-
'Biris, and unmanufactured tobacco including unmanufactured tobacco not stemmed, or partly or wholly stemmed or stripped for manufacture of biris, specified under heading 2401 of the Central Excise Tariff Act, 1985.
Explanation.- The expression "Tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does
not include any part of a tobacco plant while still attached to the earth.;
(14) in Schedule B, the following entry in column (2) against serial No. 4 in column (1) shall be inserted:-
"Rhodium.";
(15) in Schedule C.-
(a) in Part 1,-
(i) in the entry in column (2) against serial No. 10 in column (1), for the words "clamps and rolling elements", the words clamps, casing of bearing and rolling elements" shall be substituted; .
(ii) for the entry in column (2) against serial No. 14C in column (1), the following entry shall be substituted:-
"Spare parts, including blades, guards, sharks, arms and shafts, of an electric fan";
(iii) after serial No. 14C in column (1) and the entry relating thereto 'in column (2), the following serial No. in column (1) and the entry relating thereto in column (2) shall be inserted:-
"14D. Board made from bagasse.";
(iv) the following entry shall be inserted in column (2) against serial No. 27A in Column (1):-
"Embroidery making machine, whether computerized or not.";
(v) after serial No. 29 in column (1) and the entry relating thereto in column (2), the following serial No. in column (1) and the entry relating thereto in column (2) shall be inserted:-
"29A Flush doors of wood.";
(vi) in the entry in column (2) against serial No. 35 in column (1) the words "and dry flower" shall be omitted;
(vii) after serial No 53A in column (1) and the entry relating thereto in column (2), the following serial No. in column (1) and the entry relating thereto in column (2) shall be inserted:-
"53AA. Particle board and similar board of wood or other ligneous materials, whether or not agglomerated with resins or other binding substances.";
(viii) after serial No. 55D in column (1) and the entry relating thereto in column (2), the following entry in column (1) and the entry relating thereto, in column (2) shall be inserted:-
"55E. Perforated metal jali, that is to say, perforated metal net";
(ix) in the entry in column (2) against serial No. 75A in column (1), for the words "stone chips", the words "stone chips, boulders" shall be substituted; ,
(x) the entry in column (2) against serial No. 77B in column (1) shall be omitted; . ' .
(xi) for the entry in item (viii) in column (2) against serial No. 81A in column (1), the following entry shall be substituted:-
"plywood, and block board of wood.";
(b) in Part II, in the entry in column (2) against serial No. 15 in column (1), for the words "cellular telephones", the words "cellular telephone other than cellular telephone the maximum retail price of per unit of which exceeds rupees three thousand" shall be substituted;
(16) in Schedule F.-
(a) in rule 5, in clause (a), for the words "two per centum", the words "one per centum" shall be deemed to have been substituted with effect , from the 21st October. 2009; "
(b) in rule 60, in sub-rule (1), in clause (a). for the word "twenty-four", the word "twelve" shall be deemed to have been substituted with effect from the 21st October, 2009.
(c) in rule 64, for the word "twenty-four", the word "twelve' shall be deemed to have been substituted with effect from the 21st October, 2009; " .
(d) in rule 69, In sub-rule (3), 'for the word "twenty-four", the word "twelve" shall be deemed to have been substituted with effect from the 21st October, 2009.