AMENDMENT TO DEPARTMENT RESOLUTION
NOTIFICATION NO. 1349 F.T., Dated 5th July, 2005
In exercise of the power conferred by section 114 of the West Bengal Value Added Tax Act, 2003 (West Ben. Act XXXVII of 2003), the Governor is pleased hereby to make the following amendments in the West Bengal Value Added Tax Rules, 2005 (hereinafter referred to as the said rules) :-
Amendments
In the said rules, -
(1) in CHAPTER II, in rule 3, in the Table appended to sub-rule (1), in the entry in column (3) against serial No. 19 in column (1), for the words "To apply for cancellation of certificate", substitute the words "To cancel the certificate";
(2) in CHAPTER III,-
(a) in rule 5, in sub-rule (5) for the words "within sixty days", substitute the words "within one hundred and twenty days";
(b) in rule 7, for the words "within thirty days", substitute the words "within ninety days";
(3) in CHAPTER V,-
(a) in rule 20, in sub-rule (8), for the words "on purchase of such containers or materials for packing of goods", substitute the words "on purchase of such containers or materials for packing or goods, unless such containers or materials are treated as capital goods under clause (6) of section 2";
(b) in rule 21,-
(i) in sub-rule (1), for the words, figures and brackets "Subject to sub-rule (6) and sub-rule (7),", substitute the words, figure and brackets "Subject to sub-rule (6),";
(ii) in sub-rule (4), for the words "within thirty days", substitute the words and figures "within the 31st day of August, 2005";
(iii) for sub-rule (7), substitute the following sub-rule :-
"(7) After submission of the statement referred to in sub-rule (4) by a registered dealer, the appropriate assessing authority may make an order determining the amount of input tax credit for input tax rebate that the dealer is entitled to enjoy upon such opening stock of goods and if the amount so determined is less than the amount claimed by the dealer in the statement submitted under sub-rule (4), such appropriate assessing authority shall communicate the order to such dealer within the 31st day of December, 2005 :
Provided that if any mistake or incorrect statement is found in the statement submitted by a dealer under sub-rule (4) or in the order of the appropriate assessing authority, as the case may be, resulting in excess claim or excess allowance of input tax credit or input tax rebate in respect of such opening stock of gods, the amount of input tax credit or input tax rebate that the dealer is entitled to enjoy upon such opening stock of goods may be re-determined in accordance with the provisions of these rules.";
(iv) for sub-rule (8), substitute the following sub-rule :-
"(8) Input tax credit or input tax rebate on the opening stock as referred to in sub-rule (1), shall be allowed from the first day of the month following the month in which the statement referred to in sub-rule (4) is submitted by the registered dealer and the amount of such input tax credit or input tax rebate shall not exceed the amount as determined under sub-rule (7) :
Provided that if a registered dealer has enjoyed input tax credit or input tax rebate in excess of the amount that the dealer is entitled to enjoy upon such opening stock of goods as determined or re-determined under sub-rule (7), such excess amount shall be reverse credited in the month in which the communication about such determination or re-determination is received by the dealer.";
(v) in sub-rule (9), for the words "by the registered dealer within the first three months,". Substitute the words "by the registered dealer,";
(4) in CHAPTER VI,-
(a) in PART I,-
(i) after rule 26, insert the following rule :-
"26A. Deduction from turnover of sales of cotton yarn in West Bengal.-
(1) Where a dealer makes sales of cotton yarn, other than those in hank to any other dealer for use by him in the manufacture in West Bengal of hosiery goods or textile fabrics, he may deduct under clause (c) of sub-section (1) of section 16, the turnover of such cotton yarn to arrive at the turnover of sales and he shall produce, on demand by appropriate authority, relevant tax invoice or cash memo and other related documents evidencing such sales.
(2) Where a dealer makes sales or resales of cotton yarn, other than those in hank, to any other dealer who intends to make resale of such cotton yarn to another dealer of West Bengal for resale in West Bengal or for use by such purchasing dealer in the manufacture in West Bengal of hosiery goods or textile fabrics, the selling dealer may deduct under clause (c) of sub-section (1) of section 16 the turnover of such cotton yarn to arrive at his turnover of sales and he shall produce, on demand by appropriate authority, relevant tax invoice or cash memo evidencing such sales and a certificate in the Form appended to this rule, duly filled in and signed by the purchasing dealer or by a person authorised by such purchasing dealer for this purpose.
FORM OF CERTIFICATE
[See rule 26A(2)]
To
............................................. (Selling dealer)
............................................. (Address)
............................................. Registration No. (TIN), if any,
Certified that the goods purchased from you as specified in the *tax invoice/cash memo stated below are for the purpose of resale by *me/us of these goods to another dealer of West Bengal for resale by him in West Bengal or for use by him in the manufacture in West Bengal of hosiery goods or textile fabrics and are not intended to be disposed of by *me/us otherwise than by way of such resale in West Bengal.
Certificate No. (TIN), if any :
*Strike out which is not applicable.";
(ii) in rule 27,-
(A) in the marginal note, for the words, letter, figures and brackets "under clause(d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) of section 16";
(B) in sub-rule (1), for the words, letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) of section 16";
(C) in sub-rule (2), for the words, letter figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) section 16";
(D) in sub-rule (3), for the words, letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) section 16";
(iii) in rule 28, for the words letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) section 16";
(b) in PART II, in rule 29,-
(i) after the words "from an unregistered dealer", insert the words "and uses such goods in the said unit";
(ii) for the words, letter figures and brackets "under clause (d) of sub-section (1) of section 12", substitute the words, letter, figures and brackets "under clause (e) of sub-section (1) section 12";
(5) in CHAPTER VII,-
(a) in rule 32,-
(i) in sub-rule (1), for the words, letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) of section 16";
(ii) in sub-rule (2), for the words, letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) of section 16"
(b) in rule 33, for the words, letter, figures and brackets "under clause (d) of sub-section (1) of section 16", substitute the words, letter, figures and brackets "under clause (c) of sub-section (1) of section 16";
(c) after rule 33, insert the following rule :-
"33A. Exemption from tax on certain sales of gold, silver, platinum and diamond or previous stores. -
(a) any scheduled commercial bank, authorised by the Reserve Bank of India to import gold or silver or platinum from outside India; or
(b) the Minerals and Metals Trading Corporation of India Limited (a) Government of India enterprise) (hereinafter referred to as MMTC).
Sells gold, silver or platinum to a registered dealer in West Bengal for use of such goods by such registered dealer in manufacture of jewellery to be exported by him or by MMTC out of the territory of India, such scheduled commercial bank or MMTC may, subject to the conditions specified in sub-rule (3), deduct turnover of such sales of such goods under clause (c) of sub-section (1) of section 16.
(2) Where any registered dealer sells diamond or precious stones to a registered dealer in West Bengal for use of goods by such purchasing registered dealer in manufacture of jewellery to be exported by him out of the territory of India, such selling registered dealer may, subject to the conditions specified in sub-rule (3), deduct turnover of such sales of such goods under clause (c) of sub-section (1) of section 16.
(3) For claiming the deduction under clause (c) of sub-section (1) of section 16 as referred to in sub-rule (1) or sub-rule (2), as the case may be, the selling registered dealer shall furnish relevant invoice/cash memo evidencing such sales and a certificate in the form appended to this rule, duly filled in and signed by the purchasing registered dealer or by a person authorised by such purchasing registered dealer for the purpose.
[See sub-rule (3) of rule 33A]
............................................. (bank/MMTC/dealer)
............................................. Certificate of Registration No., if any
Certified that the goods purchased from you as specified in the *invoice/cash memo stated below are for the purpose of use in the manufacture of jewellery in West Bengal to be exported by *me/us out of the territory of India and amount intended to be disposed of otherwise by *me/us.
*Strike out which is not applicable,";
(6) in CHAPTER VIII, in PART II,-
(a) in rule 38,-
(i) for sub-rule (4), substitute the following sub-rule :-
"(4) A registered dealer, exercising his option for a year to pay tax in accordance with the provisions of sub-section (3) of section 16, shall communicate such option in Form 16, to the appropriate Additional Commissioner or the Deputy Commissioner duly authorised by the Commissioner for such purpose, within ninety days from the date of commencement of the year in respect of which the option is so exercised.";
(ii) omit sub-rule (5);
(iii) in sub-rule (6), for the words, figure and brackets "he shall give the dealer an opportunity of being heard before rejecting his prayer under sub-rule (4)", substitute he words, figures and brackets "he shall, after giving such dealer an opportunity of being heard, pass an order to the effect that such dealer is not entitled to pay tax under sub-section (3) of section 16 and inform the same to such dealer within fifteen days from the date of the order";
(iv) omit sub-rule (7);
(v) in sub-rule (10), for the words "who has been granted permission", substitute the words "who has exercised his option";
(vi) for sub-rule (11), substitute the following sub-rule :-
"(11) If the dealer who has exercised his option under sub-rule (4) to pay tax at a compounded rate, fails to make payment of such tax for any two quarters of the year, such dealer shall be deemed to have withdrawn his option exercised under sub-rule (4) and such withdrawal shall be effective from the first day of the quarter following the quarter or quarters for which he has failed to pa tax.";
(b) in rule 39,-
(i) in sub-rule (4),-
(A) for the words "shall make an application", substitute the words "shall exercise such option",
(B) for the words "for permission to do so within sixty day", substitute the words "within ninety days";
(ii) omit sub-rule (5)
(iii) in sub-rule (6), for the words, figure and brackets "he shall give the dealer an opportunity of being heard, before rejecting his prayer under sub-rule (4)", substitute the words, figures and brackets "he shall, after giving such dealer an opportunity of being heard, pass an order to the effect that such dealer is not entitled to pay tax under sub-section (4) of section 18 and inform the same to such dealer within fifteen days from the date of the order";
(v) for sub-rule (8), substitute the following sub-rule :-
"(8) If the dealer who has exercised his option under sub-rule (4) to pay tax at a compounded rate, fails to make payment of such tax for any two quarters of the year, such dealer shall be deemed to have withdrawn his option so exercised under sub-rule (4) and such withdrawal shall be effective from the first day of the quarter following the quarter or quarters for which he has failed to pay tax.";
(7) in CHAPTER IX,-
(a) in PART I, in rule 53, in the Table appended to sub-rule (3), after serial no. 7 in column (1) and the entries relating thereto in column (2) and column (3), insert the following serial No. In column (1) and the entries in column (2) and column (3) respectively :-
(b) in PART V, for rule 76, substitute the following rule :-
"76. Refund of tax under clause (a) of section 61.-
(1) Where a registered dealer as referred to in section 61 seeks refund to tax, such refund of tax shall be made to such dealer without making any prior assessment subject to the conditions and restrictions laid down in sub-rule (2) to sub-rule (8).
(2) The registered dealer shall, after submission of return within due date under this Act, or under the Central Sales Tax Act, 1956 (74 of 1956), make an application to the Commissioner, for payment of refund of tax that arises during the period for which such refund has been claimed on the basis of statements and declaration in Form 32, Form 33, Form 34, Form 36 and Form 37, as applicable, enclosed with the application.
(3) If the returns and the application together with statements and declaration referred to in sub-rule (2) are property filled in and the appropriate officer finds that the claim of refund of tax is admissible, necessary order making refund of tax to the registered dealer shall be issued immediately upon receipt of the application under sub-rule (2) and such refund of tax shall be made by Refund Payment Order (cash or cheque).
(4) Where it is subsequently found that excess refund has been made in any period, the same may be adjusted against refund to be given in future or against future input tax credit available to such dealer under section 22 and such amount of excess refund shall be deemed to have been quantified as tax due on the date of granting of such refund and, notwithstanding anything specified elsewhere, all the provisions of section 55, section 56; section 57, section 58, section 59 and section 60, shall be applicable mutatis mutandis on such excess amount or refund.
(5) Where claim for refund is found inadmissible, either in full or in part, the appropriate officer shall issue a notice to the applicant asking him to show cause as to why the application should not be rejected or as to why refund of tax will not be given for a lesser amount and if the Commissioner or the authorised officer is not satisfied with the reasons adduced by the applicant, he may reject the application for refund of tax or may give refund for a lesser amount, as the case may be.
(6) The applicant shall follow uniform pattern and accepted principles of accounting in respect of the claims of refund, with appropriate modifications or adjustments, if any, on the basis of findings of the Commissioner with regard to the disposal of earlier application or applications referred to in sub-rule (2).
(7) If information furnished in any document referred to in sub-rule (20 is found to be incorrect, or in the claim of refund of tax for any period, of which an application of refund has been submitted under this rule, is found to be in excess of the admissible amount by more than 10 per centum for any two return periods during the previous twelve months, the registered dealer shall not be eligible for making any application for refund to tax under this rule for the next twelve months.
(8) The refund thus made under section 61, shall be entered into a refund register in Form 38.";
(8) in CHAPTER XI, in PART A, in rule 90, in sub-rule (1), in clause (a), for the words "not less than eight years", substitute the words "not less than six years";
(9) in CHAPTER XII, in PART I,-
(a) in rule 100, in sub-rule (11), for the words "the document of goods has been counter signed by such authority", substitute the words "the documents of like nature in respect of such goods has been countersigned by such authority";
(b) in rule 103, in sub-rule (10), in clause (c), for the words "goods is not in existence as per records available in the office of the appropriate assessing authority, though he is shown in the documents produced as a dealer registered under the Act of the relevant State,", substitute the words "goods is not in existence,";
(c) in rule 108,-
(A) for the words, and figures "provisions of section 81", substitute the words, "provisions of section 73 and section 9=81";
(B) for the words "at such place near the border of West Bengal";
(ii) in sub-rule (5), in clause (d), for the words "goods is not in existence as per records available in the office of the appropriate assessing authority, though he is shown in the documents produced as dealer registered under the Act of the relevant State," substitute the words "goods is not in existence,";
(10) in CHAPTER XV,-
(a) in PART III,-
(i) in rule 182, for the words "within thirty days from such day", substitute the words "within one hundred and twenty days from such day";
(ii) in rule 184, for the words "within thirty days from the appointed day", substitute the words within one hundred and twenty days from the appointed day";
(a) in PART IV,-
(i) in rule 190, for the words "within thirty days from such day", substitute the words "within one hundred and twenty days from such day";
(ii) in rule 192, in sub-rule (1), for the words, "within thirty days from the appointed day", substitute the words "within one hundred and twenty days from the appointed day";
(11) in Form 16, for the words, figures and brackets "do hereby apply under sub-rule (4) of rule *38/39 to exercise *my/our option", substitute the words, figures and brackets "do hereby exercise *my/our option under sub-rule (4) of rule *38/39";
(12) omit Form 17;
(13) in Form 38, for the words, figures and brackets "sub-rule (6) and rule 76", substitute the words, figures and brackets "sub-rule (7) of rule 76".
2. In this notification,-
(a) sub-clause (a) of clause (4) shall be deemed to have come into force with effect from the 1st day of May, 2005;
(b) sub-clause (b) and sub-clause (c) of clause (9), shall come into force with effect from the 5th day of July, 2005; and
(c) the remaining provisions shall be deemed to have come into force with effect from the 1st day of April, 2005.