The West Bengal Finance Act, 2002

West Bengal Act I of 2002

[Relevant Extract]

[Passed by the West Bengal Legislature.]

[Assent of the Governor was first published in the Kolkata Gazette,

Extraordinary, of the 26th March, 2002.]

An Act to amend the Indian Stamp Act, 1899, in its application to West Bengal, 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 Luxury Tax Act, 1994, the West Bengal Sales Tax Act, 1994, the West Bengal Building Tax Act, 1996, the West Bengal State Tax on Consumption or Use or Goods Act, 2001, and the West Bengal Ceiling on Government Guarantees Act, 2001.

WHEREAS it is expedient to amend the Indian Stamp Act, 1899, in its application to West Bengal, 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 Luxury Tax Act, 1994, the West Bengal Sales Tax Act, 1994, the West Bengal Building Tax Act, 1996, the West Bengal Sales Tax on Consumption or Use of Goods Act, 2001, and the West Bengal Ceiling on Government Guarantees Act, 2001, for the purpose and in the manner hereinafter appearing;

It is hereby enacted in the Fifty-third 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, 2002.

(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.

7. Amendment of West Ben. Act XLIX of 1994

In the West Bengal Sales Tax Act, 1994,-

(1) in section 2, for clause (35), the following clause shall be substituted:-

'(35) "tax" means the tax payable under this Act, and includes surcharge payable under section 16, additional sales tax payable under section 18A and turnover tax payable under section 18B;";

(2) after section 15, the following section shall be inserted:-

16. Incidence of surcharge on tax

Every dealer liable to pay tax under section 9, section 10, section 15, or subsection (3) of section 27, shall pay a surcharge at the rate of ten per centum of the total amount of tax payable by him under section 17 and section 21:

Provided that the aggregate of the amount of tax and surcharge payable by any dealer on the sale of goods referred to in section 14 of the Central Sales Tax Act, 1956, shall not exceed the rate of tax specified in section 15 of that Act :

Provided further that there shall not be any levy of surcharge on the tax payable by a dealer on that part of his taxable turnover of sales as represents sales referred to in sub-section (2) of section 17 :

Provided also that there shall not be any levy of surcharge on the tax payable by the dealer on that part of his taxable turnover of sales as represents sales of such goods or such class of goods as the State Government may, by notification, specify.";

(3) in section 17, in sub-section (2),-

(a) in clause (a), after sub-clause (iii), the following sub-clause shall be inserted:-

"(iiia) four per centum of his taxable turnover of sales as represents sales to a registered dealer of machinery, equipments, instruments or tools as being intended for use by such dealer in connection with the execution of works contract of the class or classes specified in his certificate of registration;";

(b) in the first proviso, after the word, figures and brackets "sub clause (iii)", the words figures letter and brackets", or sub clause (iiia)" shall be inserted;

(4) after section 18A, the following section shall be inserted:-

18B. Liability to pay turnover tax on turnover of resales of certain goods

(1) Notwithstanding anything contained elsewhere in this Act,-

(a) every dealer whose aggregate of turnover of sales and turnover of resales of certain goods during the previous year ended on or before the 31st day of March, 2002, exceeds twenty lakh rupees shall, in addition to tax payable under any other provisions of this Act, be liable to pay from the 1st day of April, 2002, turnover tax on such part of his turnover of resales as specified in sub-section (4);

(b) every dealer other than those referred to in clause (a) whose aggregate or turnover of sales and turnover of resales calculated from the commencement of any year ending on or after the 1st day of April, 2002, exceeds twenty lakh rupees at any time within such year shall, in addition to tax payable under any other provision of this Act, be liable to pay, with effect from the day immediately following the day on which such aggregate exceeds twenty lakh rupees, a turnover tax on such part of his turnover of resales as specified in sub-section (4).

(2) Every dealer who has become liable to pay turnover tax under sub-section (1) shall continue to be so liable until expiry of three consecutive years during each of which his aggregate of turnover of sales and turnover of resales does not exceed twenty lakh rupees.

(3) Every dealer whose liability to pay turnover tax under sub-section (1) has ceased under the circumstances stated in sub-section (2) shall, if the aggregate of his turnover of sales and turnover of resales calculated from the commencement of any year again exceeds twenty lakh rupees at any time within such year, be liable to pay such tax with effect from the day immediately following the day on which such aggregate of turnovers again first exceeds twenty lakh rupees.

(4) The tax referred to in sub-section (1) shall be levied on that part of the turnover of resales of a dealer during any period which remains after deducting therefrom his turnover of resales as represents-

(a) resales of goods which are shown to the satisfaction of the Commissioner not to have taken place in West Bengal, or to have taken place in the course of inter-State trade or commerce within the meaning of section 3 of the Central Sales Tax Act, 1956, or in the course of import into, or export of the goods out of, the territory of India within the meaning of section 5 of that Act;

(b) resales of goods referred to in section 14 of the Central Sales Tax Act, 1956;

(c) resales of foreign liquor by such dealer-

(i) who has liability to make payment of excise duty as required by the Bengal Excise Act, 1909 but who has not made payment of such excise duty payable by him, or

(ii) who has made payment of excise duty payable by him under the Act referred to in sub-clause (i) and who has also made payment of tax under this Act;

(d) resales of such goods as the State Government may, by notification, specify.

(5) The turnover tax referred to in sub-section (1) shall be levied at the rate of one-half of one per centum on the turnover of resales.

(6) No dealer shall realise from his purchaser any amount of turnover tax payable by him under this section.

Explanation.- For the purposes of this section, the expression "turnover of resales", in relation to any period, means the aggregate of sale price or sale prices, if any, of a dealer in respect of sale during such period of goods specified in Part A of Schedule IV, other than Liquefied Petroleum Gas, which are purchased by him in West Bengal and sold by him without doing anything to the goods which may amount to, or result in, a manufacture.';

(5) in section 20, in sub-section (1), in clause (a), for the words "four per centum", the words "two per centum" shall be substituted;

(6) in section 21, in the proviso to sub-section (1), for sub-clause (i), the following sub-clause shall be substituted:-

"(i) five per centum of the contractual transfer price, wholly or partly, or printing materials involved in execution of such contract,";

(7) section 22C shall be omitted;

(8) in section 26,-

(a) in sub-section (1), for the words and figures "or section 15,", the words, figures and letter", section 15 or section 18B, " shall be substituted;

(b) in the proviso to sub-section (1), for the words and figures "or section 15", the words, figures and letter", section 15 or section 18B" shall be substituted;

(c) in sub-section (10), in clause (b), for the words and figures "and section 15,", the words, figures and letter", section 15 and section 18B, " shall be substituted;

(9) in section 29, in sub-section (1), for the words and figures "or section 15,", the words, figures and letter", section 15 or section 18B," shall be substituted;

(10) in section 31,-

(a) in sub-section (1), for the words "two per centum", the words "one per centum" shall be substituted;

(b) in sub-section (2), for the words "two per centum", the words "one per centum" shall be substituted;

(11) in section 32, in sub-section (1), for the words "two per centum", the words "one per centum" shall be substituted;

(12) in section 32A, for the words "two per centum" ,the words "one per centum" shall be substituted;

(13) in section 34, for the words "two per centum" , the words "one per centum" shall be substituted;

(14) in section 52, in sub-section (10), for the words "two per centum" , the words "one per centum" shall be substituted;

(15) in section 64, in sub-section (1), for the words " double the amount of tax" , the words "thrice the amount of tax" shall be submitted;

(16) in section 79,-

(a) for the provisos to sub-section (1), the following provisos shall be substituted:-

"Provided that no appeal shall be entertained unless the said authority is satisfied that amount of tax, penalty or interest, as the appellant may admit to be due from him and an amount equal to twenty per centum of the tax, penalty or interest in dispute has been paid:

Provided further that the said authority may, if it thinks fit, for reasons to be recorded in writing, entertain the appeal without prior payment of the amount equal to twenty per centum of the tax, penalty or interest in dispute, or on payment of such smaller amount of the tax, penalty or interest in dispute as it may direct:

Provided also that where the payment of tax due from a registered dealer under section 47 stands deferred under section 40, section 42 or section 43, an appeal shall, notwithstanding that the tax admitted to be due from him has not been paid, be entertained.";

(b) for sub-section (4), the following sub-section shall be substituted:-

"(4) Where-

(a) the appellant makes payment of the amount equal to twenty per centum of the tax, penalty or interest in dispute in accordance with the first proviso to sub-section (1); or

(b) the authority as referred to in the second proviso to sub-section (1), entertains any appeal without payment of the amount equal to twenty per centum of the tax, penalty or interest in dispute, or on payment of such smaller amount of tax, penalty or interest in dispute as required under the said proviso,

as the case may be, the realisation of the amount of tax, penalty or interest in dispute in excess of the amount referred to in clause (a), or clause (b), as the case may be, shall remain stayed till the disposal of an appeal referred to in sub-section (2).";

(17) after section 102, the following section shall be inserted:-

"102A. Determination of certain disputed questions.

(1) If any question arises, otherwise than in a proceeding before a court or Tribunal, or before a notice initiating assessment proceeding under section 45 or section 46, as the case may be, is served upon the dealer, whether-

(a) any particular thing has been done to any goods amounting to, or resulting in, the manufacture of such goods within the meaning of that term as defined under this Act; or

(b) any goods, used by any dealer in manufacturing any other goods, is to be treated as required directly for such manufacturing activity of the dealer; or

(c) any tax is payable in respect of any particular sale or purchase of goods, or if tax is payable, the rate thereof, the Commissioner may, upon application of any person or dealer or otherwise,

determine such question by an order passed in writing.

(2) If any question, referred to in sub-section (1), arises from any order passed under any other provision of this Act, such question shall not be determined under this section.";

(18) in Schedule I,-

(a) serial No. 57 in column (1) and the entry relating thereto in column (2) shall be omitted;

(b) against serial No. 95 in column (1), in item (v) in column (2), for the word "Anti-Nitroglycerine;", the word "Nitroglycerine;" shall be substituted, and shall be deemed to have been substituted, on the 1st day of February, 2000.

(c) after serial No. 96 in column (1) and the entry relating thereto in column (2), the following serial Nos. and entries relating thereto in column (1) and in column (2) shall be inserted:-

"97 Alta.

98. Sindur.";

(19) in Schedule IV, in Part A,-

(a) in the entry in column (2) against serial No. 100 in column (1), for the words "Industrial Transformer", the word "Transformer" shall be substituted;

(b) in the entry in column (2) against serial No. 135 in column (1), for the word "Telephone,", the words "Telephone including handsets," shall be substituted;

(c) after serial No. 232 in column (1) and the entry relating thereto in column (2), the following serial No. in column (1) and entry relating thereto in column (2) shall be inserted:-

"232A, Optical fibre cable.";

(d) serial No. 251 in column (1) and the entry relating thereto in column (2) shall be omitted;

(e) serial No. 252 in column (1) and the entry relating thereto in column (2) shall be omitted;

(20) in Schedule VIIIA,-

(a) for the entries in sub-column (a) of column (3), and column (4), against serial No. 1 in column (1), the following entries shall be substituted in sub column (a) of column (3), and column (4) respectively:-

(b) for the entries in sub-column (a) of column (3), and column (4), against serial No. 3 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(c) for the entries in sub-column (a) of column (3), and column (4), against serial No. 6 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(d) for the entries in sub-column (a) of column (3), and column (4), against serial No. 8 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(e) for the entries in sub-column (3), and column (3), and column (4), against serial No. 10 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(f) for the entries in sub-column (a) of column (3), and column (4), against serial No. 14 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(g) for the entries in sub-column (a) of column (3), and column (4), against serial No. 18 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(h) for the entries in sub-column (a) of column (3), and column (4), against serial No. 19 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-

(i) for the entries in sub-column (a) of column (3), and column (4), against serial No. 20 in column (1), the following entries shall be substituted in sub-column (a) of column (3), and column (4) respectively:-