(Jharkhand Ordinance No.2, 2011)
JHARKHAND VALUE ADDED TAX (AMENDMENT) ORDINANCE, 2011
An Ordinance to amend Jharkhand Value Added Tax Act 2005 (Jharkhand Act 05, 2006), in regard to its applicability and enforcement within the State of Jharkhand.
Preamble -
Whereas the legislative Assembly of State of Jharkhand is not in session and, whereas the Governor of Jharkhand is satisfied that circumstances exist which render it necessary for him to take immediate action to amend certain existing provisions and also to bring certain new provisions into the Jharkhand Value Added Tax Act 2005 (Jharkhand Act 05, 2006).
Now, therefore, in exercise of powers conferred by Clause (1) of Article 213 of Constitution of India, Governor of Jharkhand is pleased to promulgate the following Ordinance:
1. Short title, extent and commencement -
(i) This Ordinance may be called the Jharkhand Value Added Tax (Amendment) Ordinance, 2011.
(ii) It shall extend to the whole of the State of Jharkhand.
(iii) It shall come into force on such date as the Government may, by Notification in the Official Gazette, appoint and different date may be appointed for different provisions of this Amendment Act.
2.Amendment in Section 2 of the Act (definitions) -
(i) Clause (xii) of Section 2 of the Act, i.e. definition of "Casual Trader"-
After the words "or other valuable consideration", the following words shall be added: -
"and for the purpose of this Act, Casual Trader shall mean and include a dealer as defined in clause (xiii) of this Section."
(ii) Amendment in clause (xxviii) of Section 2 of the Act, i.e. definition of "Input"–
After the words "but excluding purchases of Petrol, Diesel" and before the words "and Natural Gas and for use as Capital Goods", the words "Furnace Oil and steam" shall be added.
(iii) Amendment in clause (xlviii) of Section 2 of the Act, i.e. definition of "Sale Price"
In Explanation- III- the words "provided the same is allowed to a registered VAT dealer" shall be omitted.
(iv) Insertion of a new clause as clause (lxA) after the existing clause (lx) of Section 2–
"(lxA) "Value of goods" means, the true sale price or the true purchase price of the goods, or prevalent fair market value of goods whichever is higher."
Explanation – Fair Market Value means the price that the goods would ordinarily fetch on sale in the open market on the date of sale or dispatch or transfer of such goods.
3. Amendment in Section 9-
(i) Amendment in clause (d) of sub-section (4) of section 9 –
After the words "restrictions as may be" and before the word "prescribed", the word "specified or" shall be added.
(ii) Insertion of new sub-section after the existing sub-section (4) of Section 9 as sub-section (5) of Section 9 –
"(5) Notwithstanding anything contained in this Act where a registered dealer allows any trade discount or incentive whether in terms of quantity in goods or otherwise in relation to any sale effected by him, the quantity so allowed as trade discount or incentive, shall be deemed to be a sale by the dealer, who allows such trade discount or incentive and a purchase by the dealer who receives such trade discount or incentive and such sale shall form part of the sale in relation to which such trade discount or incentive is allowed.
4. Amendment in Section 10-
(i) In existing clause (i), and in para (d) of clause (ii) of Section 10, the existing "Section 9" shall be substituted by "Section 8".
(ii) In existing clause (i), after the words "in the circumstances" and before the words "by that registered dealer" the words "in which no tax under section 9 is payable" shall be substituted by the following –
"where no tax has been paid under this Act"
(iii) In existing clause (ii), after the words "from a person," and before the words "shall be liable to pay tax", the following shall be added: -
(iv) After sub-clause (d) a new sub-clause (e) shall be added as follows:-
"(e) The goods other than those specified in part E of Schedule II and tax-free goods, after consumption or use in the manufacture or processing or mining of any goods specified in Schedule II, the manufactured or processed or mined goods are disposed off otherwise than by way of sale within the State of Jharkhand or in the course of inter-state trade or commerce or in the course of export out of the territory of India.
And such tax shall be levied at the rate at which tax would have been levied on the sales of such goods within the State of Jharkhand on the date of such purchase."
(v) In Explanation the words "& (e)" shall be added after the words "and sub-clause 1 (ii) (c),."
5.Insertion of a new section as section
10A - Levy of surcharge after existing sub-section (10).
10A - (1) Notwithstanding anything contained in Section 8, 9, 13, 15 and 17 of this Act, every dealer liable to pay tax under this Act shall, in addition to the tax payable by him, also pay a surcharge on the sale of goods specified in Part-E of Schedule II at such rate, not exceeding twenty per centum of the total amount of tax payable by him, as may be fixed by the State Government by a notification published in the official Gazette.
(2) All provisions of this Act relating to the payment, assessment, recovery and refund of tax thereof; shall apply to the payment, assessment, recovery and refund of surcharge.
(3) Notwithstanding any thing to the contrary contained in this Act, no dealer shall be entitled to collect the amount of this surcharge.
6. Amendment in Section 11 –
In sub-section (1) of Section 11, the word and number "Section 9", shall be substituted by "Section 8".
7. Amendment in Section 12 –
The existing "section 9" in this section, shall be substituted by "section 8".
8. Amendment in Section 13 –
In sub-section (1), the number and punctuation "50%" shall be substituted by "75%".
The existing sub-section (2), shall be substituted by the following : -
Sub-section (2) : The Rate of Tax in relation to goods mentioned in Part-A, Part-B including the Annexure(s) , Part-C and Part-D and Part-F of Schedule-II, shall be at the rate set out against each Schedule or part thereof.
Insertion of a new sub-section as sub-section (3) after the existing sub-section (2).
(3) The State Government may, by notification, enhance or reduce the respective rate(s) of taxes as specified in any of the Schedule(s) or part thereof, mentioned in sub-section (2) of this section.
Provided the State Government may specify any rate for any goods or class of goods with such conditions and restrictions as may be specified in Part - F of Schedule –II.
9. Amendment in Section 18 –
(i) The existing clause (ii) of sub-section (4) of Section 18 shall be substituted by the following –
"Sale in course of inter-State trade and commerce falling under sub-section (1) of Section 8 of the Central Sales Tax Act 1956 (74 of 1956)".
(ii) Amendment in Clause (ix) of sub-section (8) of Section 18 —
The existing clause "in respect of goods used for manufacture of goods for transfer of stock, or other than by way of sale or for sale outside the State of Jharkhand" shall be substituted by the following -
"in respect of goods consumed for manufacture of goods for Inter-State transfer of stock or for sale outside the State".
(iii) Insertion of a new clause as clause (xiv) after the existing clause (xiii) of sub-section (8) of Section 18-
"In respect to such tax invoice(s) which are issued inclusive of taxes".
10. Amendment in Section 19 –
After sub-section (3), the following explanation shall be added: -
"Explanation-I – Notwithstanding anything contained in this Act, no input tax credit shall be admissible by a registered dealer, where there is nil turnover by such registered dealer for a consecutive three months."
"Explanation-II - The Explanation-I shall not be applicable in the circumstances of dealers registered u/s 22 and 58."
"Explanation-III - The period or periods for the purpose of this Section, shall mean one calendar month or quarter or year."
11. Amendment in Section 24 –
Insertion of new sub-section as sub-section (4) after the existing sub-section (3) –
"(4) Notwithstanding anything contained in this section, wherever any credit notes are to be issued for any discounts or sales incentives by any VAT dealer to another VAT dealer after issuing tax invoice, the selling VAT dealer shall pass a credit note without disturbing the tax component on the price in the original tax invoice."
12. Amendment in Section 25 –
In sub-section (1), after the words "he has been registered" and before the words "possesses a certificate", the words "under this Act" shall be added.
Insertion of new sub-sections as sub-section (10) and (11) after existing sub-section (9) as follows -
"(10) Any person intending to establish a business in the State for the manufacture of taxable goods for sale of value, exceeding rupees fifty thousand in a year and who is registered in the Industries Department of State Government for establishing an industrial unit in the State may, notwithstanding that he is not liable to pay tax under section 8 of this Act, get himself registered under this Act."
"(11) Any person intending to establish a business in the State for the generation or distribution of electricity or any other form of power or in the telecommunication network may, notwithstanding that he is not liable to pay tax under section 8 of this Act, get himself registered under this Act."
13. Amendment in Section 26 –
In sub-section (1), after the words and punctuations "he is not liable to pay tax," and before the words "apply in the prescribed manner", the words "under section 8" shall be added.
14. Amendment in Section 35 –
(i). The existing title of this Section as "Self Assessment", shall be substituted by "Assessment and self-assessment".
(ii) . The existing alphabet/word "(a)" of sub-section (5) shall be omitted.
(iii). Clause (b) of sub-section (5), shall be substituted and renumbered as new sub-section (6).
" Sub-section (6) – In the circumstances, if the self-assessment under sub-section (1), (2), (3), (4) and (5) has not been filed within the prescribed time, the prescribed authority shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein either to attend in person or through an authorised representative or to produce or to cause to be produced any accounts and other evidences on which such dealer may rely in support of such returns and claims thereof and assess the dealer, the amount of tax and interest due from the dealer on the basis of such returns which have come on records and after making such adjustments as may be necessary including –
(i) disallowance of claim of input tax credit, exemptions, discounts and deductions and any other concessions or rebates not supported by requisite evidence as required under the Act or the rules made thereunder; and
(ii) disallowance of claims of tax payments and refund adjustment not verified or otherwise not admissible; and
(iii) withdrawal of claim of tax credit including carry forward of tax credit not admissible under the Act; and
(iv) levying of interest applicable under this Act.
Provided, notwithstanding anything contained in Section 36 if registered dealer fails to comply with all the terms of the notice under this sub-section or accounts and other evidence produced by him are, in the opinion of the prescribed authority incorrect, incomplete or unreliable either wholly or partly the said authority shall assess, to the best of its judgment, the amount of tax and interest due from the dealer which have come on records and after making such adjustments as may be necessary".
(iv). A new sub-section as sub-section (7) shall be added after sub-section (6) as follows:-
"(7) If the prescribed authority is satisfied that goods have been sold a price higher than that shown by the dealer, he may determine value of goods at the time of the sale and proceed to assess the tax on such price.
Provided before initiating such proceedings, the prescribed authority shall record his reasons for doing so and no orders shall be passed under this sub-section without giving the dealer an opportunity of being heard".
(v) The existing sub-section (6) shall be renumbered as sub-section (8) and substituted as follows:- .
"(8) No assessment under sub-section (6) shall be made after the expiry of three years, from the end of the tax period, in respect of which or part of which the tax is assessable".
15. Amendment in Section 40 –
In clause (b) of sub-section (2) of Section 40 – After the words "a sum at the rate of" and before the words "percentum for each month", the word "two" shall be substituted "five".
16. Amendment in Section 42 —
Insertion of a new sub-section as sub-sections (3), after the existing sub-section (2):-
"(3) Where an objection or observation relating to either in fact or in law, has been made by the Comptroller and Auditor-General of India, in respect to an assessment or re-assessment made or on scrutiny of any return filed u/s 33 of this Act; the prescribed authority shall proceed to re-assess the dealer with respect to whose assessment or re-assessment or scrutiny, as the case may be, the objection or the observation has been made.
Provided that no such order shall be passed without serving upon the dealer concerned a notice requiring him to file, within one month of the date of the service of such notice, a reply to such objection or the observation as raised by the Comptroller and Auditor General.
17. Amendment in Section 79 -
Insertion of a new sub-section as sub-section (7) after existing sub-section (6) as follows :-
"(7) No order under this section shall be made after the expiry of two years from the date of filing of such appeal".
18. Amendment in Section 80 –
In existing clause (a) of sub-section (2) of Section 80, after the words "by the joint commissioner", the words "(administration)" shall be added.
In existing clause (a) of sub-section (2) of Section 80, the words "specially empowered in this behalf" shall be deleted.
In sub-section (3), after the words "every application for revision" and before the words "shall be filed within ninety days", the words "under this section" shall be substituted by the words "under sub-section (2) of this section".
In existing sub-section (4), before the words "The commissioner may," the words "Notwithstanding anything contained in sub-section (2)" shall be added.
In existing sub-section (4), after the words "on his own motion" and before the words "call for and examine", the words "or on application" shall be added.
Insertion of a new proviso, after the existing sub-section (4) –
"Provided the Commissioner, on application for revision of any order of assessment or penalty or both passed by the prescribed authority under this Act, may direct such dealer/person to deposit a sum not exceeding ten percentum of the tax assessed or the penalty imposed or both."
Insertion of a new sub-section as sub-section (6) after existing sub-section (5) as follows :-
"(6) No order under this section shall be made after the expiry of two years from the date of filing of such appeal".
19. Amendment in Section 95 –
Insertion of a new proviso after the existing sub-section (1)
" Provided a registered dealer under the repealed Act with facility of TIN, liable to pay tax under this Act also and has not applied for registration in the prescribed manner; shall be treated to be unregistered for the purpose of this Act and his/its TIN shall stand cancelled".
Provided further that the registration and TIN of those dealers submitting regular returns and paying taxes shall be regularized with payment of compounded amount of penalty of Rs. 1000/- by these defaulter dealers in prescribed manner.
20. Amendment in the title of Part-B of Schedule II-
The existing rate of tax 4% shall be substituted by 5%.
21. Amendment in the title of Part-C of Schedule II-
22. Amendment in Part-D of Schedule II –
The existing title of this Schedule shall be substituted by the words "Goods Taxable @ 14%".
23. Amendment in Part-E of Schedule II –
1. The words and punctuations as "@20 % and above" shall be deleted.
2. The words, "See sub-section (2) of Section 9" shall be substituted by the words " see sub-section (3) of Section 9"
24. Insertion of Part-F in Schedule II –
Any rate for any goods or class of goods as may be specified in this Part.