Notification No.1304-L. Dated 20^th August, 2004.-

The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:-

West Bengal Act VI of 2004

THE WEST BENGAL TAXATION LAWS

(AMENDMENT) ACT, 2004

[Passed by the West Bengal Legislature]

(Assent of the Governor was first published in the Kolkatta Gazette,

Extraordinary, of the 20^th August, 2004]

An Act to amend the Bengal Amusements Tax Act, 1922, the Bengal Electricity Duty Act, 1935, the West Bengal :Primary Education Act, 1973, the West Bengal Rural Employment and Production Act, 1976, the West Bengal State Tax on Professions, Trades, Callings and Employments Act,1979, the West Bengal Taxation Tribunal Act, 1987, the West Bengal Luxury Tax Act, 1994, the West Bengal Sales Tax Act, 1994, and the West Bengal Transport Infrastructure Development Fund Act, 2002.

Ben. Act V of 1922, Ben. Act. X of 1935. West Ben. Act XLIII of 1973. West Ben. Act XLIV of 1976, West Ben. Act VI of 1979. West Ben. Act VIII of 1987. West Ben. Act XV of 1994. West Ben. Act XLIX of 1994. West Ben. Act XXI of 2002.

WHEREAS it is expedient to amend the Bengal Amusements Tax Act, 1922, the Bengal Electricity Duty Act, 1935, the West Bengal Primary Education Act, 1973, the West Bengal Rural Employment and Production Act, 1976, the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979, the West Bengal Taxation Tribunal Act, 1987, the West Bengal Luxury Tax Act, 1994, the West Bengal Sales Tax Act, 1994, and the West Bengal Transport Infrastructure Development Fund Act, 2002, for the purposes and in the manner hereinafter appearing.

It is hereby enacted in the Fifty-Fifth Year of the Republic of India, by the Legislature of West Bengal, as follows:-

Short title and commencement.

1. (1) This Act may be called the West Bengal Taxation Laws (Amendment) Act, 2004.

(2) Save as otherwise provided, it shall 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.

9. Amendment of West Bengal Act XLIX of 1994.

In the West Bengal Sales Tax Act, 1994,-

(a) in clause (10),-

(i) in sub-clause (b), for the words "other valuable consideration.", the words "other valuable consideration;" shall be substituted;

(ii) after sub-clause (b), the following sub-clause shall be inserted :-

"(c) a person who has set up a business of selling or purchasing goods in west Bengal.";

(b) after clause (11), the following clauses shall be inserted :-

'(12) "Director Economic Offences Investigation Cell" means the Director Economic Offences Investigation Cell appointed under sub-section (2) of section 7A;

(12A) "Economic Offences Investigation Cell" means the Economic Offences Investigation Cell constituted under sub-section (1) of section 7A;';

(c) in clause (31), after the words "or any sum charged as cess leviable", the words ",or a sum equal to the sum charged from a registered dealer by another registered dealer as cess leviable," shall be deemed to have been inserted with effect from the 21st day of August, 2002;

(d) in clause (40),-

(i) in sub-clause (a),-

(A) for the words "rice, wheat and foreign liquor", the words "rice, wheat, foreign liquor and country liquor" shall be deemed to have been substituted with effect from the 1st day of January, 2000;

(B) for the words "rice, wheat, foreign liquor and country liquor", the words "rice, wheat and country liquor" shall be substituted;

(ii) after sub-clause (c), the following sub-clause shall be inserted:-

"(d) the sale-prices or the parts of sale-prices if any, in respect of sale during such period of goods specified in Schedule VIII, on a prior sale whereof in West Bengal by a registered dealer, who is an importer, or a manufacturer and is not entitled to enjoy the benefit of exemption from payment of tax, or deferment of payment of tax, or remission of tax payable, under section 39, section 40, section 41, section 42, or section 43, of such goods, tax is shown to the satisfaction of the Commissioner to have been paid at the rate referred to in section 22D;";

(2) after section 7, the following section shall be inserted:-

7A. Economic Offences Investigation Cell.

(1) The State Government may constitute a Cell namely the Economic Offences Investigation Cell for the purposes of carrying out investigation or holding inquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith.

(2) The Economic Offences Investigation Cell shall consist of the Director of Economic Offences Investigation Cell appointed by the State Government and such other officers appointed to assist him as the State Government may think fit.

(3) Subject to such rules as may be prescribed, the Director of Economic Offences Investigation Cell may, notwithstanding anything to the contrary contained in this Act, on information or on his own motion or when the State Government so directs, exercise all the powers under section 62A, section 65, section 66, section 67, section 69 and section 70, for the purpose of carrying out such investigation or inquiry.

(4) The Director of Economic Offences Investigation Cell shall, after carrying out the investigation or inquiry, send a report thereof to the State Government.

(5) The Director of Economic Offences Investigation Cell and the officers appointed to assist him shall exercise jurisdiction over whole of West Bengal.

(6) On receipt of the report referred to in sub-section (4), the State Government may send such report to the Commissioner for taking such action as may be deemed necessary,';

(3) in section 13, in sub-section (1),-

(a) after the word and figures "section 10", the word and figures ",section 15" shall be inserted;

(b) in clause (c), for the words, letter, figures and brackets "other than the purpose specified in clause (a) or section 15", the words, letter and brackets "other than the purpose specified in clause (a)" shall be substituted;

(4) in section 17,-

(a) in sub-section (2), after clause (fa), the following clause shall be deemed to have been inserted with effect from the 1st day of November, 2003:-

"(fb) four per centum of such part of his taxable turnover of sales as represents sales of goods, other than goods specified in Part B of schedule IV, to the Calcutta Tramways Company (1978);

Provided that the provision of this clause shall apply subject to such conditions and restrictions as may be prescribed;";

(b) in sub-section (3), in clause (a),-

(i) in sub-clause (ix),-

(A) after the words "sales of foreign liquor", the words ", or country liquor," shall be deemed to have been inserted with effect from the 1st day of January, 2000;

(B) for the words "foreign liquor, or country liquor", the words "country liquor" shall be substituted;

(ii) in sub-clause (x),-

(A) after the words "sales of foreign liquor", in two places where they occur, the words ", or country liquor," shall be deemed to have been inserted with effect from the 1st day January, 2000;

(B) for the words "sales of foreign liquor, or country liquor,", in two places where they occur, the words "sales of country liquor" shall be substituted;

(5) 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 turnover of resales of goods during the previous year ended on or before the 31st day of March, 2004, exceeds twenty five lakh rupees shall, in addition to tax payable under any other provision of this Act, be liable to pay from the 1st day of October, 2004, a turnover tax on his turnover of resales mentioned in sub-section (4);

(b) every dealer whose turnover of resales of goods during the year commenced on the 1st day of April, 2004, exceeds twenty-five lakh rupees on any day on or after the 1st day of April, 2004, and before the 1st day of October, 2004, shall in addition to tax payable under any other provision of this Act, be liable to pay a turnover tax on his turnover of resales mentioned in sub-section (4):

(c) every dealer, other than those referred to in clause (a) or clause (b), whose turnover of resales calculated from the commencement of any year ending on or after the 1st day of April, 2004, exceeds twenty-five 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 turnover of resales exceeds twenty-five lakh rupees, a turnover tax on his turnover of resales mentioned 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 turnover of resales does not exceed twenty-five 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 his turnover of resales calculated from the commencement of any year again exceeds twenty-fie 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 turnover of resales again first exceeds twenty-five 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, (74 of 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) resale 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-fifth of one per centum on such part of turnover of resales as specified in sub-section (4).

Explanation.- For the purpose 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 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.';

(6) in section22, in sub-section (2), for the words, figures and brackets "item of iron and steel falling in another category as specified in any other sub-clause of clause (iv)", the words, figures and brackets "item of iron and steel falling in that sub-clause or in any other sub-clause of clause (iv)" shall be substituted.

(7) after section 22B, the following sections shall be inserted:-

22C. Set-off of tax payable on sales of goods specified in Schedule VIII.

(1) Subject to other provisions of this section, there shall be a set-off of the amount of tax which has been realised from a registered dealer, on or after coming into force of this section, in respect of sales to him in West Bengal of any goods specified in Schedule VIII against the amount of tax payable by him on resale of such goods in West Bengal.

Explanation.- For the purpose of this section, the expression "in West Bengal" shall not include sales 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 of the goods into, or export of the goods out of, the territory of India within the meaning of section 5 of that Act.

(2) A registered dealer who intends to claim a set-off of the amount of tax under sub-section (1), shall, for the purpose of determining the amount of tax to be set-off, maintain accounts, records or evidence in respect of the value or quantity of goods specified in Schedule VIII purchased by him in West Bengal.

(3) No claim for set-off under sub-section (1) shall be allowed to a registered dealer against his purchases of goods specified in Schedule VIII, unless the amount of tax has been separately charged and shown in the bill or cash memo issued to him by the registered dealer from whom he has purchased such goods.

(4) The claim for set-off of the amount of tax realised from a registered dealer on sale to him of any goods specified in Schedule VIII, shall not exceed the amount of tax payable by such dealer on his resale of such goods.

22D.Payment of tax at certain percentage of maximum retail price on sale of goods, specified in Schedule VIII.

Notwithstanding anything contained in clause (g) of sub-section (1) of section 17, any registered dealer, who is an importer, or a manufacturer and is not entitled to enjoy the benefit of exemption from payment of tax, or deferment of payment of tax, or remission of tax payable, under section 39, section 40, section 41, section 42, or section 43, of any goods specified in Schedule VIII, may, at his option, pay, in lieu of the tax payable by him on sale of such goods under clause (g) of sub-section (1) of section 17, tax at such rate on the maximum retail price of such goods specified in that Schedule as the State Government may, by notification, specify, and different rates may be fixed for different items of such goods.';

(8) in section 26, in sub-section (6), in the second proviso, for the words and figures "or section 12,", the words, figures and letter, "section 12, section 15, or section 18B," shall be substituted;

(9) in section 27,-

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

"(1) Any dealer may, notwithstanding that he is not liable to pay tax under any provision of this Act, apply in the prescribed manner to the prescribed authority for registration under this Act.";

(b) in sub-section (5), for the words and figures "section 12 or section 15", the words, figures and letter "section 12, section 15, or section 18B"shall be substituted;

(c) in sub-section (6), for the words and figures "section 12 or section 15", the words, figures and letter "section 12, section 15, or section 18B" shall be substituted:

(10) in section 45A,-

(a) in sub-section (1), for the words "fifty lakh rupees", the words "seventy-five lakh rupees" shall be substituted;

(b) in clause (a) of the first proviso to sub-section (1), for the words "three consecutive years", the words "two consecutive years" shall be substituted.

(c) in sub-section (2), for the words "fifty lakh rupees", the words "seventy-five lakh rupees" shall be substituted;

(11) in section 72, in sub-section (3), the following provisos shall be added at the end:-

"Provided that the Commissioner, or the authority referred to in sub-section (2), may, before countersigning the consignment note or a document of like nature containing the declaration produced, demand from the transporter, by an order in writing, a reasonable amount of security, if he is satisfied that the transporter has failed to produce before the Commissioner or such authority, at the last checkpost, as specified in sub-section (4), any consignment note or a document of like nature containing the declaration made by him in respect of any goods transported in a goods vehicle by him on any previous occasion;

Provided further that the security furnished shall be released to the transporter, if the Commissioner or the authority demanding the security under the first proviso is satisfied that the goods vehicle carrying the goods, for which the consignment note or the document of like nature containing the declaration had been endorsed on furnishing of security, has exited from West Bengal;

Provided also that if the transporter fails to produce before the Commissioner, or the authority referred to in sub-section (2), the evidence of exit from West Bengal of the vehicle carrying the goods, referred to in the second proviso, within a reasonable time from such exit, the security shall be adjusted against the penalty which may be imposed upon the transporter under sub-section (6) or under section 71B.";

(12) in section 79,-

(a) for the provisos to sub-section (1), the following provisos shall be deemed to have been substituted with effect from the 1st day of April, 2004:-

"Provided that no appeal shall be entertained by the said authority unless he is satisfied that such amount of the tax, penalty or interest, as the case may be, as the appellant may admit to be due from him has been paid:

Provided further 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) In sub-section (2), the following provisos shall be added at the end:-

"Provided that any appeal, which is presented on or after coming into force of this proviso and is entertained under section (1), shall, if not disposed of before expiry of two years from the date of its presentation, be deemed to have been disposed of in accordance with law and all the claims of the applicant shall be deemed to have been allowed in full:

Provided further that the appropriate appellant authority may, before expiry of the period mentioned in the first proviso, obtain from the Commissioner an extension of time mentioned in that proviso and where the Commissioner, for reasons to be recorded in writing, extends the time, such appeal may be disposed of during the one year immediately following the period mentioned in the first proviso.";

(c) for sub-section (4), the following sub-section shall be deemed to have been substituted with effect from the 1st day of April, 2004:-

"(4) Pending disposal of an appeal referred to in sub-section (2), the appellant authority may, on application, at his discretion and subject to such conditions and restrictions as may be prescribed stay realisation of the amount of tax, penalty or interest in dispute wholly or in part.";

(13) in Schedule 1,-

(a) after serial No. 4A 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:-

"4B. Rusk.";

(b) for the entry (c) in column (3) against serial No. 14, the following entry shall be substituted:-

(c) Except when sold with a brand name.";

(c) the entry in column (2) against serial No. 41 in column (1), for the words "Gur and Jaggery,", the words "Gur, Rab fit for human consumption and jaggery," shall be deemed to have been substituted with effect from the 1st day of January, 2000;

(d) for the entries in column (2) against serial No. 66 in column (1), the following entry shall be substituted:-

:Pen of all varieties and descriptions and refill, cartridges and nozzles thereof and writing ink.";

(e) after serial No. 76 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 deemed to have been inserted with effect from the 1st day of April, 1998:-

"76A. Solar fans, solar lights, solar pumps and solar lanterns which run on electricity generated by photovoltaic devices,";

(f) for the entries in column (2) against serial No. 81 in column (1), the following entry shall be substituted:-

"Cotton fabrics, man-made fabrics, or woven fabrics of wool, as referred to in section 14 of the Central Sales Tax Act, 1956.";

(14) in schedule IV, in PART A,-

(a) the entries in column (2) against serial No. 24 in column (1) shall be omitted;

(b) the entries in column (2) against serial No. 124 in column (1) shall be omitted;

(c) the entries in column (2) against serial No. 181 in column (1) shall be omitted;

(d) for the entries in column (2) against serial No.227 in column (1), the following entries shall be substituted:-

"Utensils, that is to say, implements or containers used in cooking, dish, bowl and tumbler, made of stainless steel, plastic or aluminium, other than those specified elsewhere in this Schedule or in any other Schedule.";

(e) for serial No.253 in column (1) and the entries relating thereto in column (2) the following serial Nos. in column (1) and entries relating thereto in column (2) shall be substituted:-

(15) for Schedule VIII, the following schedule shall be substituted:-

"SCHEDULE VIII

[See Section 17(1)(g)]

Goods on sale of which tax is payable at the rate fixed in column (3), against the corresponding entry of such goods in column (2), of this Schedule

(16) in Schedule VIIIA:-

(a) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 1 in column (1), shall be omitted;

(b) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 2 in column (1), shall be omitted;

(c) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 3 in column (1), shall be omitted;

(d) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 6 in column (1), shall be omitted;

(e) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 7 in column (1), shall be omitted;

(f) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 8 in column (1), shall be omitted;

(g) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 9 in column (1), shall be omitted;

(h) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 10 in column (1), shall be omitted;

(i) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 11 in column (1), shall be omitted;

(j) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 12 in column (1), shall be omitted;

(k) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 13 in column (1), shall be omitted;

(l) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 14 in column (1), shall be omitted;

(m) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 15 in column (1), shall be omitted;

(n) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 16 in column (1), shall be omitted;

(o) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 18 in column (1), shall be omitted;

(p) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 21 in column (1), shall be omitted;

(q) the entries in column(2), sub-column (a) and sub-column (b) of column (3), and column (4), against serial No. 22 in column (1), shall be omitted;

10. Amendment of West Ben. Act XXI 0f 2002.

In the West Bengal Transport Infrastructure Development Fund Act, 2002, in section 4, for sub-section (1), the following sub-section shall be substituted:-

"(1) These shall be levied and collected, for the purposes of this Act, a cess on every sale in West Bengal-

(a) by any person, other than the persons referred to in clause (b), of goods which have not been purchased by such person in West Bengal,

(b) by any of the persons, namely,-

(i) Indian Oil Corporation Limited,

(ii) Hindusthan Petroleum Corporation Limited,

(iii) Bharat Petroleum Corporation Limited,

(iv) IBP Company Limited,

(v) Indian Oil Corporation Limited (Assam Division),

(vi) Indian Oil Petronas Private Limited,

(vii) Reliance Petroleum Private Limited,

(viii) Reliance Marketing Private Limited,

Made to any person, other than those referred to in sub-clause

(i) to sub-clause (viii), of goods-

(A) which have been purchased in West Bengal by the person referred to in sub-clause (i) to sub-clause (viii) from any other person so referred to or,

(B) which have not been purchased in West Bengal by the person referred to in sub-clause (i) to sub-clause (viii),

Provided that, subject to such condition as may be prescribed, the State Government may exempt, with prospective or restropective effect, any sale of goods from levy of cess.";