Whereas the Government of Maharashtra is satisfied that circumstances exist which render it necessary to take immediate action further to amend the Maharashtra Value Added Tax Rules, 2005 (herein after referred as "said Act") and to dispense with the condition of previous publication thereof under the proviso to sub-section (4) of section 83 of the Maharashtra Value Added Tax Act, 2002 (Mah. IX of 2005);
Now, therefore, in exercise of the powers conferred by sub-sections (1) and (2) read with the proviso to sub-section (4) of section 83 of the said Act, and of all other powers enabling it in this behalf, the Government of Maharashtra hereby, makes the following rules further to amend the Maharashtra Value Added Tax Rules, 2005, namely :-
1. (1) These rules may be called the Maharashtra Value Added Tax (2nd Amendment) Rules, 2008.
(2) Except as provided otherwise, these rules will come into effect on the 1st November, 2008.
2. In rule 11 of the Maharashtra Value Added Tax Rules, 2005 (hereinafter referred to as "the principal Rules"),-
(1) in sub-rule (4), in clause (b), for the word "on" the words "of effect of" shall be substituted;
(2) in sub-rule (5), after the word "or" the word "otherwise" shall be inserted.
3. In rule 16 of the principal Rules, after sub-rule (2), the following sub-rule shall be added, namely:-
"(3) A dealer who is holding a registration certificate as on the 1st August 2007, if,-
(i) he has not obtained the Permanent Account Number under the Income Tax Act, 1961 shall obtain, and furnish the same on or before the 31st January 2009 to the registering authority;
(ii) he has not furnished the Permanent Account Number, shall furnish the same on or before the 31st January 2009 to the registering authority."
4. After rule 17 of the principal Rules, the following rule shall be inserted, namely:-
"17A. Electronic filing. -
The Commissioner may by notification published in the Official Gazette, provide that in respect of the periods starting on or after the date specified in the said notification the class or classes of the dealers specified in the said notifications shall, in addition to a hard copy if so specified in the notification, submit application, declaration, annexure, appeal and memorandum, report of audit and any other document which may be specified in the notification in an electronic form with or without digital signature, as may be specified, in the manner laid down in the notification. Such notification may be issued from time to time."
5. Rule 19 of the principal Rules shall be deleted and shall be deemed to have been deleted with effect from the 14th March 2008.
6. In rule 37 of the principal Rules, for the words "and another copy shall be sent to the officer against whose order the appeal is filed "the words "and one copy shall be sent to the officer against whose order the appeal is filed and in the case where the order is passed in second appeal, another copy shall be sent to the officer whose order forms the subject of the proceedings before the first appellate authority." shall be substituted.
7. In rule 45 of the principal Rules, in sub-rule (6), for the words "one year" the words "twelve months" shall be substituted.
8. For rule 48 of the principal Rules, the following rule shall be substituted, namely:-
"48. Form of Application and Notice for the purposes of proviso to sub-section (1) of section 33, -
(i) The application for the purposes of sub-section (1) of section 33 shall be in Form 314.
(ii) The notice for the purposes of sub-section (1) of section 33 shall be in Form 318."
9. In rule 53 of the principal Rules,-
(1) in sub-rule (2),
(a) in sub-clause (a), for the words "three per cent", the following shall be substituted and shall be deemed to have been substituted with effect from the 1st April 2007, namely:-
"the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956";
(b) in the Explanation, for the words and figures "sugar or fabrics to which entry 45 of Schedule A applies and" the words, "goods to which Schedule A applies if" shall be substituted;
(c) in sub-clause (b), for the words "three per cent", the following shall be substituted and shall be deemed to have been substituted with effect from the 1st April 2007, namely:-
"the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956".
(2) in sub-rule (3), for the words "three per cent", the words, brackets and figures "the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956" shall be substituted and shall be deemed to have been substituted with effect from the 1st April 2007.";
(3) in sub-rule (4) , after clause (b), the following Explanation shall be added, and deemed to have been added with effect from 1st April 2005, namely:-
"Explanation.- For the purposes of this sub-rule, the expression "claimant dealer" shall also include a sub-contractor if the principal contractor has awarded the contract or part of contract to a sub-contractor and the principal contractor has opted in respect of the said contract for the composition of tax under sub-section (3) of section 42.";
(4) for sub-rule (6), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 8th September 2006, namely:-
"(6) If out of the gross receipts of a dealer in any year, receipts on account of sale are less than fifty per cent. of the total receipts, -
(a) then to the extent that dealer is a hotel or club, not being covered under composition scheme, the dealer shall be entitled to claim set-off only,-
(i) on the purchases corresponding to the food and drinks (whether alcoholic or not) which are served, supplied or, as the case may be, resold or sold, and
(ii) on the purchases of capital assets and consumables pertaining to the kitchens and sale, service or supply of the said food or drinks, and
(b) in so far as the dealer is not a hotel or restaurant, the dealer shall be entitled to claim set-off only on those purchases, effected in that year where the corresponding goods are sold or resold within six months of the date of purchase or are consigned within the said period, not by way of sale to another State, to oneself or one's agent or purchases of packing materials used for packing of such goods sold, resold or consigned:
Provided that for the purposes of clause (b), the dealer who is a manufacturer of goods not being a dealer principally engaged in doing job work or labour work shall be entitled to claim set-off on his purchases of plant and machinery which are treated as capital assets and purchases of parts, components and accessories of the said capital assets, and on purchases of consumables, stores and packing materials in respect of a period of three years starting from the end of the year containing the date of effect of the certificate of registration.";
(5) in sub-rule (7),-
(a) after the proviso, the following proviso shall be added and deemed to have been added with effect from the 1st April 2005, namely:-
"Provided further that, nothing in this sub-rule shall apply to the Indian Naval Canteen Service and the Canteen Stores Department.";
(b) for the Explanation, the following Explanation shall be substituted and shall be deemed to have been substituted with effect from the 4th July 2008, namely:-
"Explanation: For the purposes of this sub-rule, the expression "actual sale price" shall mean the aggregate of sale price and the tax charged separately, if any, and in any other case the sale price inclusive of tax.";
(6) for the sub-rule (7B), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 31st October 2007, namely:-
"(7B) If the claimant dealer is holding a license for transmission or as the case may be, distribution of electricity under the Electricity Act, 2003 or is a generating company as defined in the said Act, then in respect of the periods starting on or after the 1st April 2005, save as otherwise provided under subrule (1), an amount equal to the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956 of the purchase price of the goods purchased including goods treated as capital assets by him for use in the generation, transmission, or, as the case may be, distribution of electricity shall be reduced from the amount of set-off otherwise available in respect of the said purchases of goods including goods treated as capital assets.";
(7) after sub-rule (8), the following sub-rules shall be added, namely:-
"(9)(a) For the purposes of sub-rule (1), clause (a) of sub-rule (2) and sub-rule (3), any reference to the corresponding goods on the purchase of which set-off is claimed, shall be construed in relation to any period starting on or after the 1st April 2005, as a reference to the corresponding goods (not being consumable, stores, or goods treated as capital assets, parts, components and accessories of capital assets and goods used as fuel) which are resold or are so dispatched outside the State or are used in or relation to the manufacture of goods so sold or dispatched and are contained in the goods so sold, resold or dispatched and the packing material used alongwith the goods so sold, resold or dispatched. Any reference to the corresponding purchase price, corresponding taxable goods or corresponding purchases of packing material shall be construed accordingly.
(b) While reducing set-off under,-
(i) sub-rule (2), for the purpose of determining the purchase price of the corresponding taxable goods, where it is not possible to ascertain the purchase price by reference to the books of account, the ratio of the sale price of the taxable goods and tax free goods or where there is no sale price, the value of the taxable goods and tax free goods shall be applied; and
(ii) sub-rule (3), the ratio of the value of the goods inclusive of any duty of Excise as it appears in the books of accounts of the goods dispatched as aforesaid and the sale price of other goods shall be applied for deciding the corresponding purchase price.
(10) If the dealer has executed a contract, at any time after the 1st April 2005, of processing of textiles, then set-off on the goods purchased on or after the said date, shall be allowed to the extent of tax paid on purchases in excess of the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956 on the purchase price,-
(a) as regards the goods in respect of which property is transferred during the said processing, and
(b) as regards packing materials used for packing of the said textiles, and
(c) as regards other purchases including purchases of capital assets shall be calculated as permissible under other rules.".
10. In rule 61 of the principal Rules, the following proviso shall be added, namely:-
"Provided that the Non-resident dealer may furnish the bank guarantee from any branch situated outside the State of Maharashtra of a bank which is treated as Government Treasury for the purposes of these rules."
11. In rule 65 of the principal Rules, the portion beginning with the words "The dealer shall in addition" and ending with the words "the website www.mahavat.gov.in" shall be deleted.
12. In rule 68 of the principal Rules,-
(1) for the words "five years" the words "six years" shall be substituted;
(2) for the proviso, the following proviso shall be substituted, namely:-
"Provided that, where any proceedings have been initiated in respect of any registered dealer within the said period of six years, the said dealer shall preserve the said books of accounts, registers and other documents, beyond the said period of six years till a final order is passed in respect of the said proceedings."
13. In rule 78 of the principal Rules, in sub-rule (2), after clause (b), the following shall be added and shall be deemed to have been added with effect from the 1st April 2005, namely:-
"(c) in respect of periods starting on or after the 1st April 2005, a sum equal to the refund claimed or, as the case may be, granted under sub-rule (2) of rule 79.".
14. In rule 79 of the principal Rules,-
(1) in sub-rule (2), for the words, figures and letters "four per cent. for the period upto the 31st March 2007 and thereafter, three percent" the words, brackets and figures, "the amount calculated at the rate notified from time to time, by the Central Government for the purposes of sub-section (1) of section 8 of the Central Sales Tax Act, 1956" shall be substituted and shall be deemed to have been substituted with effect from the 1st April 2007;
(2) for sub-rule (3), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 8th September 2006, namely:-
"(3) Notwithstanding anything contained in sub-rule (2), no refund under the said sub-rule shall be allowed unless, the Unit holding the said Certificate for exemption or as the case may be, for deferral payment of tax reduces in respect of the period starting on or after the 1st April 2005 an amount equal to the amount of refund calculated as per sub-rule (2) from the balance of monetary ceiling available at the beginning of the return period in respect of which refund is claimed under sub-rule (2), and files the returns or, as the case may be, revised returns for the period to which such refund relates by admitting such deductions therein." .
15. In rule 87 of the principal Rules, in sub-rule (1),-
(1) in clause (b) after word "post" the words "or courier agency" shall be added.
(2) in clause (c), in sub-clause (A) for the word "notice by post, but the notice is returned undelivered by the postal authority" the words "notice by post or by a courier agency, but the notice is returned undelivered by the postal authorities or courier agency" shall be substituted.
16. Form 211 appended to principal Rule shall be deleted.
17. For Form 315 appended to the principal Rules, the following Form shall be substituted, namely:-
"FORM 315
[See Rule 21(1)]
Notice under Sub- section (6) of section 23 of the Maharashtra Value Added Tax Act, 2002
To
________________________________
Reference No.
Whereas I am of the opinion that () tick mark which ever is applicable):-
(1) The turnover of sales and/or purchases has been incorrectly recorded, or
(2) Tax has been paid at the lesser rate, or
(3) The set-off has been wrongly claimed or the deduction has been wrongly claimed, in respect of the period/(s) from ------------------ to --------------.
You are now hereby directed to attend at ---------------------------------- (place) at------------------------- (time) ---------------------------- on --------------------------------------- -- (date) and to show cause as to why you should not be assessed under sub-section (6) of section 23 of the said Act.
You are further directed to produce or cause to be produced the following documents and accounts.
(1) ----------------------------------- ---------------------------- --------------------
(2) ----------------------------------- ---------------------------- ---------------------
(3) ----------------------------------- ---------------------------- ---------------------
(4) ----------------------------------- ---------------------------- ---------------------
and to furnish or cause to be furnished the following information.
You may also produce or cause to be produced any other evidence for determining the correct amount of tax payable by you for the said period.
18. In Form 406 appended to the principal Rules, for the item at Serial Numbers 4 and 5, the following shall be substituted, namely:-
*As applicable ".
19. In Form 407 appended to the principal Rules, for the item at Serial Numbers 4, 5 and 6 the following shall be substituted, namely:-
20. For Form 704 appended to the principal Rules, the following Form shall be substituted, namely:-
FORM 704
INSTRUCTIONS
1. Please read these instructions carefully before filling up the report.
2. No additional enclosure unless prescribed or unless it is essential for furnishing the information is to be filed with this report.
3. Do not leave any field or box blank. In case any field or box is not applicable, enter 'zero' (0) in numerical fields and write 'N.A.' for 'Not Applicable' or as the case may be, 'Nil'' in other fields.
4. This report is divided in three parts. Part 1 is mainly related to verification and certification. Part 2 is mainly related to general information about the dealer under audit. The auditor is expected to ascertain the various parameters in part 2 and supply the details required. Part 3 is about the various schedules and their Annexures.
5. The auditor MUST give his remarks in brief in table 3 of Part I, wherever difference is found between Amount as per returns and Amount as per audit. This is essential to make the report complete and transparent. It will also prevent avoidable queries by the Department.
6. Filling of Part 1 and Part 2 of this report is mandatory in respect of all the dealers. It is mandatory to fill in the relevant schedule(s) of part 3 as also the Annexures wherever required.
7. If the dealer has multi-State activities, then ratios related to gross and net profit may be given at all India level and other ratios should be given at State level.
8. The tax liability is to be computed as required by law wherever documents are not made available to the auditor or are insufficient.
9. Third part of the report is linked with the type of return/s filed by the dealer and is to be filled in accordingly. Instructions provided for filling in information in the return/s are applicable to respective items of the schedules, as shown in following table. If, while filing returns, these instructions have not been followed, the auditor should ensure that they are followed in the audit report.
10. Auditor is requested to sign and put his seal on every page of the report.
FORM - 704
(See rule 65)
Audit report under section 61 of the Maharashtra Value Added Tax Act, 2002,
PART - 1
AUDIT AND CERTIFICATION
1. *I/We report that the statutory audit for the year __________________ of _______________________ (mention name and address of the dealer) holding Tax- Payer Identification No.___________ under the Maharashtra Value Added Tax Act, 2002 and registration No. ________________ under the Central Sales Tax Act, 1956 was conducted by *me/us/ M/s.________________________________ Chartered Accountants in pursuance of the provisions of the Income Tax Act, 1961 and we hereto annex a copy of *our/their audit report dated ___________ along with all the annexures and a copy each of --
(a) the audited *Profit And Loss Account / Income And Expenditure Account for the year ended on ____________________________;
(b) the audited Balance Sheet as at _____________________;
2. Maintenance of Books of Accounts, Sales Tax related records and Financial Statements are the responsibility of the Entity's Management. Our responsibility is to express an opinion on their Sales Tax related records and Financial Statements based on our audit. We have conducted our audit in accordance with the auditing standards generally accepted in India. These standards require that we plan and perform the audit to obtain reasonable assurance about whether the Sales Tax related records and Financial Statements are free of material mis-statement(s). The audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the Financial Statements. An audit also includes assessing the accounting principles used and significant estimates by management as well as evaluating the overall Financial Statement presentation. We believe that our audit provides a reasonable basis for our opinion.
3 (A). Subject to the limitation of the audit indicated in above para, I/we have verified correctness and completeness of the below mentioned Sales Tax Returns.
Table 1
(B). and subject to *my / our remarks about non-compliance, shortcomings and deficiencies in the returns filed by the dealer as given in the Table 3 of Part 1 of this report, certify that,
a) *I/We have read and understood the instructions for filling up this audit report and the Auditor is required to fill in schedule I / II / III / IV / V/ VI (score out whichever is not applicable) and the Annexures if required.*I/We have obtained all the information and explanations which, to the best of *my / our knowledge and belief, were necessary for the purposes of our audit.
b) In *my / our view the books of accounts, purchase and sale invoices as also cash memos and other sales tax related records and registers maintained by the dealer are sufficient for verification of correctness and completeness of the returns. The records relating to receipts and dispatches of goods are properly maintained. The tax invoices issued are in conformity with the provisions of law.
c) The gross turnover of sales declared in the returns includes all the transactions of sales concluded during the period under audit.
d) The gross turnover of purchases declared in the returns includes all the transactions of purchases made during the period under audit.
e) The adjustment to turnover of sales and / or purchases is based on entries made in the books of accounts during the period of review, supported by necessary documents.
f) The deductions from the gross turnover of sales and other adjustments thereto including deduction on account of goods returned, adjustments on account of discounts as also debit/credit notes issued or received on account of other reasons, claimed in the returns are supported by necessary documents. Further, the deductions and adjustments not claimed or made in the returns, are neither required nor authorized to be claimed or made in the returns under the provisions of relevant Act.
g) Considering the schedule and entry wise classification of goods sold, the rate of tax applied is correct and the details regarding the exempted sales, sales at reduced rates, the composition rates and computation of tax payable as shown in the returns is proper.
h) Computation of set-off admissible in respect of purchases made during the period of review and adjustments thereto are correct. While ascertaining the correctness, *I/We have taken into account the factors of goods returned, adjustments on account of discounts as also debit /credit notes issued or received on account of other reasons.
i) Computation of Cumulative Quantum of Benefits (CQB), wherever applicable, is in conformity of the provisions of the Act in this regard.
j) The quantum of tax payable /claim of refund is correct.
k) Other information furnished in the returns is correct and complete.
l) The dealer is conducting his business from the place/places declared by him as his main place of business/ and the additional places of business.
m) The bank statements have been examined by *me/us and they are fully reflected in the books of accounts. Excepting in so far as transactions recorded in the cash book, the transactions recorded in the books of accounts are fully reflected in bank statements during the period of review.
n) Whether dealer has maintained stock register. (Yes/No)
(o) Whether dealer has maintained proper record relating to receipt, dispatch and delivery of goods. (Yes/No)
4. Summary of the additional or reduced tax liability payable by the dealer and / or additional or reduced refund due to the dealer, arising on verification of sales tax returns together with books of accounts and other related records mentioned herein above, for the period under audit is as follows -
Table 2
UNDER MAHARASHTRA VALUE ADDED TAX ACT, 2002
(Rs.)
UNDER CENTRAL SALES TAX ACT, 1956
5. The dealer has been advised to
(a) file revised returns for the period from .......... ........ and -
(i) Pay additional tax liability of Rs. ............ (Rupees ....................). or
(ii) Pay back excess refund received of Rs........... ................ (Rupees ....................). or
(iii) Claim additional refund of Rs. .............. .................. (Rupees ....................). or
(iv) Reduce the claim of refund by Rs. ........ (Rupees .................... ). or
(v) Reduce tax liability by Rs. .................................... (Rupees ....................). or
(vi) Revise closing balance of CQB by Rs. ........................ (Rupees ....................).
(b) following other recommendations are made to the dealer [Please specify]
6. Remarks and observations in detail for the difference found between Amount as per return and Amount as per audit in schedule I/II/III/IV/V/VI
TABLE 3
If space provided for Remarks on non compliance is insufficient, additional sheet in the form of table 3 may be attached.
Encl: Statutory Audit Report and its Annexures with Balance Sheet *Profit & Loss Account / Income and Expenditure Account
*Strike out whichever is not applicable
PART - 2
General Information
(Please tick the appropriate box)
2)..................................................................................
3)..................................................................................
3. On the basis of the activity of the dealer please specify the activity code number of the dealer.
4. Details of purchases exceeding Rs. five lakh from new local supplier on which set-off has been claimed during the year. New local supplier means a supplier from whom no purchases were effected in the immediately preceding year.
Amount (net)