The Bihar Value Added Tax Act, 2005
Administered Ministry: Ministry of Home Affairs / Department of States
Section
Section 21 Security.
Where it appears necessary to the prescribed authority to do so for the proper realisation of the tax payable under this Act, he may, by an order in writing and for reasons to be recorded therein, direct a dealer to furnish such security and in such manner as may be prescribed.
Section 22 Declared manager.
(1) Every dealer, who is liable to pay tax under this Act, and who is a Hindu undivided family, a firm, company or corporation or a society or club or association or who is engaged in business as a guardian or a trustee or otherwise on behalf of another person, shall furnish to the prescribed authority in the prescribed manner a declaration stating the name and prescribed particulars of the person or persons who shall be deemed to be the manager or managers of such dealer's business for the purposes of this Act.
(2) Every dealer shall specifically authorise his manager or officer or any other person to receive any form of declaration, make any statement, furnish any return, statement, accounts, produce documents or other evidence and any statement made, return or statement furnished, accounts, registers or documents produced or evidence given by the manager or any person authorised by him or by the dealer in this behalf, in the course of any proceeding under this Act, shall be binding on the dealer.
(2) Every dealer shall specifically authorise his manager or officer or any other person to receive any form of declaration, make any statement, furnish any return, statement, accounts, produce documents or other evidence and any statement made, return or statement furnished, accounts, registers or documents produced or evidence given by the manager or any person authorised by him or by the dealer in this behalf, in the course of any proceeding under this Act, shall be binding on the dealer.
Section 23 Furnishing of information by dealers.
If any person or dealer liable to pay tax under this Act--
(a) transfers or otherwise disposes of his business or any part thereof, whether by way of sale or otherwise, or
(b) acquires any business or part of any business, whether by way of purchase or otherwise, or
(c) effects any other change in the ownership or constitution of the business, or
(d) discontinues his business, or shifts his place of business, or
(e) changes the name, style or nature of his business or effects any change in the class or description of goods dealt in by him, or
(f) starts a new business or joins another business either singly or jointly with other person or persons, or
(g) effects any change in the particulars furnished in an application under section 19 or declaration furnished under section 22, or
(h) applies for or has an application made against him for insolvency or liquidation under any law for the time being in force, or
(i) makes a reference or has a reference made under the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986),
he shall, within seven days of the occurring of any of the events aforesaid, inform the prescribed authority accordingly, and, if any such dealer dies without doing so, his executor, administrator, successor-in-interest or legal representative, as the case may be, shall, within fifteen days of the dealer's death, inform the said authority accordingly.
(a) transfers or otherwise disposes of his business or any part thereof, whether by way of sale or otherwise, or
(b) acquires any business or part of any business, whether by way of purchase or otherwise, or
(c) effects any other change in the ownership or constitution of the business, or
(d) discontinues his business, or shifts his place of business, or
(e) changes the name, style or nature of his business or effects any change in the class or description of goods dealt in by him, or
(f) starts a new business or joins another business either singly or jointly with other person or persons, or
(g) effects any change in the particulars furnished in an application under section 19 or declaration furnished under section 22, or
(h) applies for or has an application made against him for insolvency or liquidation under any law for the time being in force, or
(i) makes a reference or has a reference made under the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986),
he shall, within seven days of the occurring of any of the events aforesaid, inform the prescribed authority accordingly, and, if any such dealer dies without doing so, his executor, administrator, successor-in-interest or legal representative, as the case may be, shall, within fifteen days of the dealer's death, inform the said authority accordingly.
Section 24 Returns, payment of tax, interest and penalty.
(1) Every person, being--
(a) a dealer, who is not registered under this Act, by a notice served in the manner prescribed by the prescribed authority;
(b) a registered dealer (other than a dealer permitted under section 15 to pay tax at a fixed rate in lieu of the tax payable by him),
shall furnish a true and complete return in respect of all his transactions relating to sales, purchases, receipts and despatches of goods and any other transactions prescribed specifically for each month, on or before the end of the next following month to the prescribed authority in such form and in such manner as may be prescribed.
(2) Without prejudice to the provisions contained in sub-section (1), every person, being --
(a) a dealer, who is not registered under this Act, by a notice served in the manner prescribed by the prescribed authority;
(b) a registered dealer (other than a dealer permitted under section 15 to pay tax at a fixed rate in lieu of the tax payable by him),
shall furnish a true and complete statement in respect of all his transactions relating to sales and purchases of goods and any such details as may be prescribed for each completed quarter on or before the end of the month following the end of the quarter to the prescribed authority in such form and in such manner as may be prescribed.
(3) Every registered dealer shall furnish to the prescribed authority, on or before the due date, a true and complete return in respect of every financial year in the form and manner prescribed.
Explanation.--In this sub-section, "due date" means--
(a) where the dealer is a company within the meaning of the Companies Act, 1956 (1 of 1956), the 30th day of November of the year following the year to which such return relates;
(b) where the dealer is a person, other than a company,--
(i) in a case where the accounts of the dealer are required under this Act or any other law to be audited or where the report of an accountant is required to be furnished under section 54, the 31st day of October of the year following the year to which such return relates;
(ii) in any other case, the 31st day of July of the year following the year to which such return relates.
(4) Every dealer who has been permitted to pay tax under section 15 shall file a quarterly abstract statement for each completed quarter on or before the end of the month following the end of the quarter to the prescribed authority in such form and in such manner as may be prescribed.
(5) If the due date prescribed for the filing of quarterly statement or monthly return or quarterly abstract statement or annual return happens to be a holiday, the next date on which the office opens shall be deemed to be the due date.
(6) Notwithstanding anything contained in sub-section (1) or sub-section (2), the prescribed authority may, for specific reasons to be recorded in writing, extend the date of filing such return or quarterly statement, as the case may be, subject to the condition that such an extension may be allowed only once and for a period not exceeding thirty days from the due date; but the Commissioner may allow extension beyond thirty days for reasons to be recorded in writing subject to the condition that such an extension may be allowed only once and that also for a period not exceeding three months.
(7) If a dealer, having furnished a monthly return under sub-section (1) or the quarterly statement under sub-section (2), discovers any omission or wrong statement therein, he may furnish a revised return or statement, as the case may be, in the form and manner prescribed to the prescribed authority at any time before the due date within the meaning of sub-section (3):
Provided that no such return or statement shall be taken into consideration if, upon information or otherwise and for reasons to be recorded in writing, the prescribed authority is satisfied that the return or statement originally furnished was deliberately false or that it was furnished with intent to defraud the State Government of its revenue.
(8) If a dealer fails to furnish the return within the time specified under sub-section (1) or the quarterly statement under sub-section (2) or the quarterly abstract statement under sub-section (4), the prescribed authority shall, after giving such a dealer an opportunity of being heard in the manner prescribed, impose a penalty at the rate of twenty-five rupees for every day of such failure.
(9) (a) Every dealer liable to furnish the return under sub-section (1) shall also deposit the tax payable, according to the return on or before the fifteenth day of the following month in such manner as may be prescribed and shall enclose the proof of payment in the form and manner prescribed along with the return.
(b) Every dealer permitted to pay tax under section 15 shall also deposit the tax, arrived at after applying the rate specified in the notification issued under section 15 to his quarterly turnover, on or before the fifteenth day of the month following the quarter to which it relates and shall enclose the proof of payment in the form and manner prescribed along with the statement required to be furnished under sub-section (4).
(c) Subject to the provisions of sub-section (10), if any registered dealer submits a revised return under sub-section (7) and if the amount of tax due from such dealer according to the revised return is higher than the amount which was due according to the original return, such revised return shall be accompanied by a receipt showing the payment of extra amount of tax in the manner provided in clause (a).
(10) If a dealer, required to furnish the return under sub-section (1) or statement under sub-section (4), fails to pay the amount of tax payable according to the provisions of sub-section (9), such dealer shall be liable to pay interest--
(a) in respect of tax payable under sub-section (9), by him in accordance with the return or the quarterly abstract statement or revised return, as the case may be; or
(b) in respect of the tax payable for the period for which he has failed to furnish returns under subsection (1) or quarterly abstract statement under sub-section (4), at the rate of one and a-half per cent. per month of the amount due from the date the tax so payable had become due to the date of its payment.
Explanation.For the purposes of this sub-section--
(i) where the period of default in payment of tax covers a period less than a month, the interest payable on such tax in respect of such period shall be computed proportionately;
(ii) "month" shall mean thirty days.
(11) Any interest levied or penalty imposed under this section shall be without prejudice to any action, which is or may be taken under section 81.
(12) A rebate at the rate of half per cent. of the amount of tax admitted to be due in the return furnished under sub-section (1), subject to a maximum of fifty thousand rupees in a year, shall be allowed to a registered dealer who has furnished the return within the due dates specified under this section and has paid such amount in full on or before the date specified for payment of tax under this section.
(a) a dealer, who is not registered under this Act, by a notice served in the manner prescribed by the prescribed authority;
(b) a registered dealer (other than a dealer permitted under section 15 to pay tax at a fixed rate in lieu of the tax payable by him),
shall furnish a true and complete return in respect of all his transactions relating to sales, purchases, receipts and despatches of goods and any other transactions prescribed specifically for each month, on or before the end of the next following month to the prescribed authority in such form and in such manner as may be prescribed.
(2) Without prejudice to the provisions contained in sub-section (1), every person, being --
(a) a dealer, who is not registered under this Act, by a notice served in the manner prescribed by the prescribed authority;
(b) a registered dealer (other than a dealer permitted under section 15 to pay tax at a fixed rate in lieu of the tax payable by him),
shall furnish a true and complete statement in respect of all his transactions relating to sales and purchases of goods and any such details as may be prescribed for each completed quarter on or before the end of the month following the end of the quarter to the prescribed authority in such form and in such manner as may be prescribed.
(3) Every registered dealer shall furnish to the prescribed authority, on or before the due date, a true and complete return in respect of every financial year in the form and manner prescribed.
Explanation.--In this sub-section, "due date" means--
(a) where the dealer is a company within the meaning of the Companies Act, 1956 (1 of 1956), the 30th day of November of the year following the year to which such return relates;
(b) where the dealer is a person, other than a company,--
(i) in a case where the accounts of the dealer are required under this Act or any other law to be audited or where the report of an accountant is required to be furnished under section 54, the 31st day of October of the year following the year to which such return relates;
(ii) in any other case, the 31st day of July of the year following the year to which such return relates.
(4) Every dealer who has been permitted to pay tax under section 15 shall file a quarterly abstract statement for each completed quarter on or before the end of the month following the end of the quarter to the prescribed authority in such form and in such manner as may be prescribed.
(5) If the due date prescribed for the filing of quarterly statement or monthly return or quarterly abstract statement or annual return happens to be a holiday, the next date on which the office opens shall be deemed to be the due date.
(6) Notwithstanding anything contained in sub-section (1) or sub-section (2), the prescribed authority may, for specific reasons to be recorded in writing, extend the date of filing such return or quarterly statement, as the case may be, subject to the condition that such an extension may be allowed only once and for a period not exceeding thirty days from the due date; but the Commissioner may allow extension beyond thirty days for reasons to be recorded in writing subject to the condition that such an extension may be allowed only once and that also for a period not exceeding three months.
(7) If a dealer, having furnished a monthly return under sub-section (1) or the quarterly statement under sub-section (2), discovers any omission or wrong statement therein, he may furnish a revised return or statement, as the case may be, in the form and manner prescribed to the prescribed authority at any time before the due date within the meaning of sub-section (3):
Provided that no such return or statement shall be taken into consideration if, upon information or otherwise and for reasons to be recorded in writing, the prescribed authority is satisfied that the return or statement originally furnished was deliberately false or that it was furnished with intent to defraud the State Government of its revenue.
(8) If a dealer fails to furnish the return within the time specified under sub-section (1) or the quarterly statement under sub-section (2) or the quarterly abstract statement under sub-section (4), the prescribed authority shall, after giving such a dealer an opportunity of being heard in the manner prescribed, impose a penalty at the rate of twenty-five rupees for every day of such failure.
(9) (a) Every dealer liable to furnish the return under sub-section (1) shall also deposit the tax payable, according to the return on or before the fifteenth day of the following month in such manner as may be prescribed and shall enclose the proof of payment in the form and manner prescribed along with the return.
(b) Every dealer permitted to pay tax under section 15 shall also deposit the tax, arrived at after applying the rate specified in the notification issued under section 15 to his quarterly turnover, on or before the fifteenth day of the month following the quarter to which it relates and shall enclose the proof of payment in the form and manner prescribed along with the statement required to be furnished under sub-section (4).
(c) Subject to the provisions of sub-section (10), if any registered dealer submits a revised return under sub-section (7) and if the amount of tax due from such dealer according to the revised return is higher than the amount which was due according to the original return, such revised return shall be accompanied by a receipt showing the payment of extra amount of tax in the manner provided in clause (a).
(10) If a dealer, required to furnish the return under sub-section (1) or statement under sub-section (4), fails to pay the amount of tax payable according to the provisions of sub-section (9), such dealer shall be liable to pay interest--
(a) in respect of tax payable under sub-section (9), by him in accordance with the return or the quarterly abstract statement or revised return, as the case may be; or
(b) in respect of the tax payable for the period for which he has failed to furnish returns under subsection (1) or quarterly abstract statement under sub-section (4), at the rate of one and a-half per cent. per month of the amount due from the date the tax so payable had become due to the date of its payment.
Explanation.For the purposes of this sub-section--
(i) where the period of default in payment of tax covers a period less than a month, the interest payable on such tax in respect of such period shall be computed proportionately;
(ii) "month" shall mean thirty days.
(11) Any interest levied or penalty imposed under this section shall be without prejudice to any action, which is or may be taken under section 81.
(12) A rebate at the rate of half per cent. of the amount of tax admitted to be due in the return furnished under sub-section (1), subject to a maximum of fifty thousand rupees in a year, shall be allowed to a registered dealer who has furnished the return within the due dates specified under this section and has paid such amount in full on or before the date specified for payment of tax under this section.
Section 25 Scrutiny of returns.
(1) The prescribed authority shall, within the time and in the manner prescribed, scrutinize every return filed under sub-sections (1) and (3) of section 24 for the purpose of ascertaining that--
(a) all calculations contained therein are arithmetically accurate;
(b) the output tax, the input tax, the tax payable and interest payable, if any, have been computed correctly and properly;
(c) the rates of tax have been applied correctly; and
(d) evidence, as prescribed, has been furnished with regard to payment of tax and interest payable, if any.
(2) If, upon scrutiny under sub-section (1), the prescribed authority discovers any error, he shall serve a notice in the prescribed form on the concerned dealer directing him to--
(a) pay, within thirty days, the extra amount of tax along with the interest, if any, payable and furnish the challan evidencing such payment; or
(b) explain, within thirty days, that the return or returns filed by him do not suffer from any error and all requirements specified in clauses (a) to (d) of sub-section (1) have been complied with.
(3) (a) The prescribed authority shall, in a case falling under clause (b) of sub-section (2) and after giving the dealer a reasonable opportunity to adduce necessary evidence, pass such order in the matter as it may deem fit.
(b) If, pursuant to an order under clause (a), any tax or interest is found to be payable by a dealer, a notice in the form and manner prescribed, shall be served upon the dealer requiring him to pay the tax and interest within the time as may be prescribed.
(c) Any tax or interest payable under clause (b) shall be deemed to be an arrear of tax within the meaning of section 39.
(a) all calculations contained therein are arithmetically accurate;
(b) the output tax, the input tax, the tax payable and interest payable, if any, have been computed correctly and properly;
(c) the rates of tax have been applied correctly; and
(d) evidence, as prescribed, has been furnished with regard to payment of tax and interest payable, if any.
(2) If, upon scrutiny under sub-section (1), the prescribed authority discovers any error, he shall serve a notice in the prescribed form on the concerned dealer directing him to--
(a) pay, within thirty days, the extra amount of tax along with the interest, if any, payable and furnish the challan evidencing such payment; or
(b) explain, within thirty days, that the return or returns filed by him do not suffer from any error and all requirements specified in clauses (a) to (d) of sub-section (1) have been complied with.
(3) (a) The prescribed authority shall, in a case falling under clause (b) of sub-section (2) and after giving the dealer a reasonable opportunity to adduce necessary evidence, pass such order in the matter as it may deem fit.
(b) If, pursuant to an order under clause (a), any tax or interest is found to be payable by a dealer, a notice in the form and manner prescribed, shall be served upon the dealer requiring him to pay the tax and interest within the time as may be prescribed.
(c) Any tax or interest payable under clause (b) shall be deemed to be an arrear of tax within the meaning of section 39.
Section 26 Self-Assessment of tax.
(1) Subject to the provisions of section 25, the tax due in respect of a financial year from every registered dealer, who has furnished the return and statement mentioned in section 24, shall be deemed to have been assessed.
(2) Notwithstanding anything contained in sub-section (1), the Commissioner may, in the interest of revenue, select any registered dealer for detailed audit of his business, on the basis of a selection model as may be prepared for such purpose, incorporating therein such criteria as may be deemed fit by the Commissioner.
(3) The audit of the business of a dealer selected under sub-section (2) shall be conducted, within a period of twenty-four months from the due date within the meaning of sub-section (3) of section 24, in such manner as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), the Commissioner may, in the interest of revenue, select any registered dealer for detailed audit of his business, on the basis of a selection model as may be prepared for such purpose, incorporating therein such criteria as may be deemed fit by the Commissioner.
(3) The audit of the business of a dealer selected under sub-section (2) shall be conducted, within a period of twenty-four months from the due date within the meaning of sub-section (3) of section 24, in such manner as may be prescribed.
Section 27 Assessment of dealer not filing returns.
(1) If a registered dealer fails to furnish before the due date specified under sub-section (3) of section 24--
(a) the returns specified under sub-section (1) or sub-section (3) of section 24; or
(b) the quarterly abstract statement under sub-section (4) of section 24; or
(c) the statement under sub-section (2) of section 24, the prescribed authority shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of its judgment, the amount of tax due from the dealer and interest, if any--
(2) Any assessment made or interest levied under this section shall be without prejudice to any action, which is, or may be, taken under section 81.
(a) the returns specified under sub-section (1) or sub-section (3) of section 24; or
(b) the quarterly abstract statement under sub-section (4) of section 24; or
(c) the statement under sub-section (2) of section 24, the prescribed authority shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of its judgment, the amount of tax due from the dealer and interest, if any--
(2) Any assessment made or interest levied under this section shall be without prejudice to any action, which is, or may be, taken under section 81.
Section 28 Assessment of tax of dealers evading registration.
(1) If upon information which has come into his possession, the prescribed authority is satisfied that reasonable grounds exist to believe that any dealer has been liable to pay tax under this Act in respect of any period, and has nevertheless wilfully failed to apply for grant of certificate of registration, or, having so applied, failed to furnish any particulars or information required for the purposes of section 19, the prescribed authority shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of its judgment, the amount of tax due, if any, from the dealer in respect of such period and all subsequent periods; and the prescribed authority may, direct that the dealer shall pay, by way of penalty, in addition to the amount of tax so assessed, a sum of one hundred rupees for every day of the period during which the dealer failed to apply for registration or failed to furnish any particulars or information required for the purposes of section 19 or an amount equal to the amount of tax assessed, whichever is higher:
Provided that no proceeding for such assessment shall be initiated except before the expiry of two years from the expiry of the period to which it relates:
Provided further that a proceeding initiated under this sub-section shall be completed within a period of four years from the date of initiation.
(2) Any assessment made, interest levied or penalty imposed under this section shall be without prejudice to any action which is, or may be, taken under section 81.
Provided that no proceeding for such assessment shall be initiated except before the expiry of two years from the expiry of the period to which it relates:
Provided further that a proceeding initiated under this sub-section shall be completed within a period of four years from the date of initiation.
(2) Any assessment made, interest levied or penalty imposed under this section shall be without prejudice to any action which is, or may be, taken under section 81.
Section 29 Assessment of tax on disputed question.
Notwithstanding anything contained in any other provision of this Act, where the assessment involves a decision on a point which is concluded against any of the authorities specified in sub-section (1) of section 10 by a judgment of the Tribunal and an appeal has been filed under section 79, then unless otherwise directed by the High Court, the prescribed authority may complete the assessment as if the point was not so decided against such authority, but shall stay the recovery of such of the dues including tax, penalty, interest or amount forfeited, if any, in so far as they relate to such point, until the decision by the High Court and after such decision, may modify the assessment order, if found necessary, after giving the dealer a reasonable opportunity of being heard.
Section 30 Assessment of tax of non-resident dealer doing business temporarily by way of fair, mela, etc.
(1) Notwithstanding anything contained in section 19, or section 26 and subject to such rules as may be prescribed, it shall be open to the prescribed authority or any other officer authorised by the Commissioner in this behalf to make provisional or final assessment of turnover of sale or purchase of goods, as the case may be, effected by any dealer residing outside the State of Bihar and carrying on business temporarily by way of fair, mela or by way of any other similar mode in the State of Bihar.
(2) If a dealer referred to in sub-section (1) claims that the sales affected by him are not of goods imported by him, the onus to prove such claim shall lie on the claimant.
(2) If a dealer referred to in sub-section (1) claims that the sales affected by him are not of goods imported by him, the onus to prove such claim shall lie on the claimant.
Section 31 Assessment or re-assessment of tax of escaped turnover.
(1) If the prescribed authority is satisfied, either on the basis of audit conducted under sub-section (3) of section 26 or otherwise, that reasonable grounds exist to believe that, in respect of any assessment under this Act or under the Bihar Finance Act, 1981 (Bihar Act 5 of 1981), as it stood before its repeal by section 94, during any period, any sale or purchases of goods liable to tax under this Act or the said Act, for any reason, has been underassessed or has escaped assessment, or has been assessed to tax at a lower rate, or any deduction therefrom has been wrongly made, or an input tax credit has incorrectly been claimed, the prescribed authority shall, in such manner as may be prescribed and after serving on the dealer a notice in the form and in the manner prescribed, proceed to assess or re-assess, as the case may be, the tax payable by such dealer within four years from the expiry of the year during which the original order of assessment or re-assessment was passed, in a case where the dealer has concealed, omitted or failed to disclose full and correct particulars of such sale or purchase or input tax credit, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice under this sub-section was a notice under section 27:
Provided that the amount of tax shall be assessed or re-assessed after allowing such deductions as were allowable during the said period and at the rates at which it would have been assessed had the turnover not escaped assessment.
(2)(a) The prescribed authority shall, in a case where the dealer has concealed, omitted or failed to disclose full and correct particulars of such sale or purchase or input tax credit, direct that the dealer shall, besides the amount of interest payable under sub-section (10) of section 24, pay by way of penalty, a sum equal to three times the amount of tax which is or may be assessed on the turnover of sale or purchase which escaped assessment.
(b) The penalty imposed under clause (a) shall be in addition to the amount of tax, which is or may be assessed on the turnover of sale or purchase which escaped assessment.
(3) Any assessment or re-assessment made and any penalty imposed under this section shall be without prejudice to any action, which is or may be taken under section 81.
Provided that the amount of tax shall be assessed or re-assessed after allowing such deductions as were allowable during the said period and at the rates at which it would have been assessed had the turnover not escaped assessment.
(2)(a) The prescribed authority shall, in a case where the dealer has concealed, omitted or failed to disclose full and correct particulars of such sale or purchase or input tax credit, direct that the dealer shall, besides the amount of interest payable under sub-section (10) of section 24, pay by way of penalty, a sum equal to three times the amount of tax which is or may be assessed on the turnover of sale or purchase which escaped assessment.
(b) The penalty imposed under clause (a) shall be in addition to the amount of tax, which is or may be assessed on the turnover of sale or purchase which escaped assessment.
(3) Any assessment or re-assessment made and any penalty imposed under this section shall be without prejudice to any action, which is or may be taken under section 81.
Section 32 Escaped turnover detected before or at the time of assessment of tax.
(1) If the prescribed authority is satisfied that any registered dealer--
(a) has concealed any sales or purchases or any particulars thereof, with a view to reduce the amount of tax payable by him under this Act; or
(b) has furnished incorrect statement of his turnover or incorrect particulars of his sales or purchases in the return furnished under sub-section (1) of section 24 or quarterly statement under sub-section (2) of section 24 or quarterly abstract statement under sub-section (3) of section 24; or
(c) has claimed input tax credit in excess of the amount of input tax credit to which he is entitled under this Act,
the prescribed authority shall, after giving such a dealer an opportunity of being heard in the prescribed manner, by an order in writing, direct that he shall, besides the amount of interest payable under sub-section (10) of section 24 and in addition to any tax which may be determined to be payable by him under the Act, pay by way of penalty, a sum equal to three times the amount of tax on the concealed turnover or on concealed or incorrect particulars or excess input tax credit claimed.
(2) The penalty under sub-section (1) may be imposed before completion of assessment, and for determining the amount of penalty, the prescribed authority may quantify the amount of tax provisionally in the prescribed manner.
(3) Any penalty imposed under sub-section (1) shall be without prejudice to any action, which is or may be taken under section 81.
(a) has concealed any sales or purchases or any particulars thereof, with a view to reduce the amount of tax payable by him under this Act; or
(b) has furnished incorrect statement of his turnover or incorrect particulars of his sales or purchases in the return furnished under sub-section (1) of section 24 or quarterly statement under sub-section (2) of section 24 or quarterly abstract statement under sub-section (3) of section 24; or
(c) has claimed input tax credit in excess of the amount of input tax credit to which he is entitled under this Act,
the prescribed authority shall, after giving such a dealer an opportunity of being heard in the prescribed manner, by an order in writing, direct that he shall, besides the amount of interest payable under sub-section (10) of section 24 and in addition to any tax which may be determined to be payable by him under the Act, pay by way of penalty, a sum equal to three times the amount of tax on the concealed turnover or on concealed or incorrect particulars or excess input tax credit claimed.
(2) The penalty under sub-section (1) may be imposed before completion of assessment, and for determining the amount of penalty, the prescribed authority may quantify the amount of tax provisionally in the prescribed manner.
(3) Any penalty imposed under sub-section (1) shall be without prejudice to any action, which is or may be taken under section 81.
Section 33 Assessment of tax based on audit objections.
Where an objection has been made by the Comptroller and Auditor-General of India in respect of an assessment or re-assessment made or scrutiny of any return filed under 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 has been made in the manner prescribed:
Provided that no order under this section shall be passed without giving the dealer an opportunity of being heard.
Provided that no order under this section shall be passed without giving the dealer an opportunity of being heard.
Section 34 Assessment of tax proceedings, etc., not to be invalid on certain grounds.
No assessment and demand on account of any tax, interest or penalty shall be invalid or affected by reason only of any mistake in the name, residence, place of business or status of any person liable to pay the tax, interest of penalty or by reason only of clerical error or other defect of form, if the provisions contained in this Act and the rules made thereunder have, in substance, been complied with.
Section 35 Taxable turnover.
(1) For the purposes of this Act, the taxable turnover of a dealer shall be that part of his gross turnover which remains after deducting therefrom--
(a) the aggregate value of the transactions specified in section 6;
(b) sale price on account of sales exempted under section 7;
(c) in the case of works contract, the amount remaining after deducting from the gross value of the contract the amount on account of the following, namely:--
(i) labour charges for execution of the works contract,
(ii) amount paid to sub-contractor on account of labour and services,
(iii) charges for planning, designing and architects fees,
(iv) charges for obtaining on hire, the machineries and tools used in the execution of the works contract,
(v) cost of consumables such as water, electricity, fuels, etc., used in execution of the works contract, the property in which is not transferred in the course of execution of a works contract,
(vi) cost of establishment of the contractor to the extent, it is relatable to supply of labour and services,
(vii) other similar expenses relatable to supply of labour and services,
(viii) profit earned by the contractor to the extent it is relatable to the supply of labour and services, and
(ix) goods or transaction exempted under section 6 or section 7;
(d) value of goods transferred otherwise than by way of sale;
(e) the value of goods sold but returned to the dealer within a period of six months from the date of the original sales and in respect of which the selling dealer has issued to the purchasing dealer a credit note specified in section 53;
(f) sale price at the subsequent stages of sale of such goods as are specified in Schedule IV as being subject to tax at the first point of their sale in the State of Bihar, if necessary evidence as required by sub-section (2) of section 13 are filed along with the return filed by the dealer under sub-section (3) of section 24.
(2) Where a dealer claims that he is not liable to pay tax on any part of his gross turnover in respect of any goods by reason of transfer of such goods by him to any other dealer or to his agent or to his principal, as the case may be, for sale, the burden of proving such claim shall be on the dealer and for this purpose, along with other evidences as may be prescribed, he shall furnish before the prescribed authority a declaration in a form and in the manner prescribed.
(a) the aggregate value of the transactions specified in section 6;
(b) sale price on account of sales exempted under section 7;
(c) in the case of works contract, the amount remaining after deducting from the gross value of the contract the amount on account of the following, namely:--
(i) labour charges for execution of the works contract,
(ii) amount paid to sub-contractor on account of labour and services,
(iii) charges for planning, designing and architects fees,
(iv) charges for obtaining on hire, the machineries and tools used in the execution of the works contract,
(v) cost of consumables such as water, electricity, fuels, etc., used in execution of the works contract, the property in which is not transferred in the course of execution of a works contract,
(vi) cost of establishment of the contractor to the extent, it is relatable to supply of labour and services,
(vii) other similar expenses relatable to supply of labour and services,
(viii) profit earned by the contractor to the extent it is relatable to the supply of labour and services, and
(ix) goods or transaction exempted under section 6 or section 7;
(d) value of goods transferred otherwise than by way of sale;
(e) the value of goods sold but returned to the dealer within a period of six months from the date of the original sales and in respect of which the selling dealer has issued to the purchasing dealer a credit note specified in section 53;
(f) sale price at the subsequent stages of sale of such goods as are specified in Schedule IV as being subject to tax at the first point of their sale in the State of Bihar, if necessary evidence as required by sub-section (2) of section 13 are filed along with the return filed by the dealer under sub-section (3) of section 24.
(2) Where a dealer claims that he is not liable to pay tax on any part of his gross turnover in respect of any goods by reason of transfer of such goods by him to any other dealer or to his agent or to his principal, as the case may be, for sale, the burden of proving such claim shall be on the dealer and for this purpose, along with other evidences as may be prescribed, he shall furnish before the prescribed authority a declaration in a form and in the manner prescribed.
Section 36 Tax payable by a dealer.
The tax payable by a dealer shall be calculated according to the following formula, namely:--
T = A–B
Where--
T means the tax payable by the dealer,
A means the output tax under this Act, and
B means the total amount of input tax credit allowable to the dealer under section 16 or section 17.
T = A–B
Where--
T means the tax payable by the dealer,
A means the output tax under this Act, and
B means the total amount of input tax credit allowable to the dealer under section 16 or section 17.
Section 37 Time limit for completion of proceeding of assessment of tax.
Except for a proceeding under sub-section (2) of section 26, section 28, sub-section (1) of section 31 and section 33, no proceeding for assessment of tax payable by a dealer under this Act in respect of any period shall be initiated and completed except before the expiry of two years from the expiry of such period:
Provided that a proceeding for re-assessment in pursuance of or as a result of an order on appeal, revision or review shall be initiated and completed before the expiry of one year from the expiry of the year during which such order was communicated to the assessing authority:
Provided further that the Commissioner may, on being satisfied that it is necessary so to do and for reasons to be recorded in writing, extend in a case or class of cases, the said period of two years to such further period not exceeding two years.
Provided that a proceeding for re-assessment in pursuance of or as a result of an order on appeal, revision or review shall be initiated and completed before the expiry of one year from the expiry of the year during which such order was communicated to the assessing authority:
Provided further that the Commissioner may, on being satisfied that it is necessary so to do and for reasons to be recorded in writing, extend in a case or class of cases, the said period of two years to such further period not exceeding two years.
Section 38 Exclusion of time in assessment tax proceedings.
In computing the period of limitation prescribed for assessment or re-assessment, as the case may be, under section 27 or section 28 or section 29 or section 30 or section 31 or section 32 or section 33, the time during which any assessment or reassessment proceedings remained stayed under the order of any competent court shall be excluded.
Section 39 Payment and recovery of tax.
(1) The tax payable under this Act shall be paid in the manner hereinafter provided.
(2) The amount of--
(i) tax estimated in advance under sub-section (7) of section 3, or
(ii) tax due according to the returns filed by the dealer where full payment of such amount has not been made, or
(iii) tax assessed or re-assessed under section 26 or section 27 or section 28 or section 29 or section 30 or section 31 or section 32 or section 33 or in pursuance of or as a result of an order on appeal, revision or review, less the sum, if any, already paid by the dealer, or
(iv) interest chargeable or penalty imposed, if any, under any of the provisions of this Act,
shall be paid by the dealer or the person concerned into a Government Treasury or a bank authorised in this behalf by the State Government, or in such other manner as may be prescribed and by such date as may be specified in a notice issued by the prescribed authority for this purpose and the date to be specified shall, ordinarily, not be less than thirty days from the date of service of such notice:
Provided that the authority may, in respect of any particular dealer or a person, and, for reasons to be recorded in writing, extend the date of such payment, or allow such dealer to pay tax or interest due and the penalty, if any, by instalments in the manner prescribed:
Provided further that where the prescribed authority considers it expedient in the interest of revenue, it may, for reasons to be recorded in writing, require any dealer, or person, to make such payments forthwith.
(3) If a dealer or a person fails to make payment of any amount of tax by the period specified in the notice issued under sub-section (2) or fails to make payment of tax by the date extended or has defaulted in making payment of instalments under the first proviso of the said sub-section, the dealer shall, for such failure or default, pay, in addition to the amount of tax, an amount by way of simple interest calculated at the rate of one and a-half per cent. for each calendar month or part thereof on the amount of such tax.
(4) Where, in course of any proceeding, the prescribed authority finds that any dealer has--
(i) wrongly claimed either the whole or part of his turnover as not taxable and, has consequently, paid lesser amount of tax than payable by him; or
(ii) wrongly declared his turnover or any particulars thereof and thereby has reduced the amount of tax payable under this Act; or
(iii) wrongly claimed input tax credit in excess of what he is entitled to under this Act,
the dealer shall pay, in addition to the amount of tax assessed under any proceeding as aforesaid, simple interest at the rate of one and a half per cent. for each calendar month or part thereof on the difference of the amount previously admitted and tax finally assessed from the date, the tax would have been payable had the dealer not committed any of the acts mentioned in clause (i) or clause (ii) or clause (iii):
Provided that where the recovery of tax or any part thereof assessed under any proceeding under this Act is stayed as a result of an order on appeal or by any competent court, the amount of such interest shall be recoverable after the final order is passed and such order is confirmed from the date the tax first became due.
(5) If a dealer or a person has failed, without reasonable cause, to make payment of any amount of tax by the date specified in the notice issued under sub-section (2) or forthwith as required by the second proviso thereto, or in like manner has failed to make payment of tax and interest by the date extended under the first proviso of the said sub-section or has defaulted in payment of instalments or has not paid the amount of interest due, the prescribed authority, after giving the dealer a reasonable opportunity of being heard, may direct that the dealer shall pay, in the prescribed manner, by way of penalty for such failure, an amount which shall be five per cent. per month of the amount payable following the expiry of such date for each subsequent month and part thereof.
(6) Subject to the provisions of sub-sections (2), (4) and (5), any amount of tax, interest together with penalty, if any, which remains unpaid after the date specified in the notice issued under sub-section (2), or penalty imposed under sub-section (5) and remaining unpaid shall, without prejudice to any other mode of recovery, be recoverable as if it were an arrear of land revenue:
Provided that where an appeal in respect of such amount has been entertained under section 72, the appellate authority may, subject to such rules as may be made by the State Government under this Act, stay recovery of such amount or portion thereof for so long as the appeal remains pending or for such shorter period as the said authority may consider to be adequate.
(2) The amount of--
(i) tax estimated in advance under sub-section (7) of section 3, or
(ii) tax due according to the returns filed by the dealer where full payment of such amount has not been made, or
(iii) tax assessed or re-assessed under section 26 or section 27 or section 28 or section 29 or section 30 or section 31 or section 32 or section 33 or in pursuance of or as a result of an order on appeal, revision or review, less the sum, if any, already paid by the dealer, or
(iv) interest chargeable or penalty imposed, if any, under any of the provisions of this Act,
shall be paid by the dealer or the person concerned into a Government Treasury or a bank authorised in this behalf by the State Government, or in such other manner as may be prescribed and by such date as may be specified in a notice issued by the prescribed authority for this purpose and the date to be specified shall, ordinarily, not be less than thirty days from the date of service of such notice:
Provided that the authority may, in respect of any particular dealer or a person, and, for reasons to be recorded in writing, extend the date of such payment, or allow such dealer to pay tax or interest due and the penalty, if any, by instalments in the manner prescribed:
Provided further that where the prescribed authority considers it expedient in the interest of revenue, it may, for reasons to be recorded in writing, require any dealer, or person, to make such payments forthwith.
(3) If a dealer or a person fails to make payment of any amount of tax by the period specified in the notice issued under sub-section (2) or fails to make payment of tax by the date extended or has defaulted in making payment of instalments under the first proviso of the said sub-section, the dealer shall, for such failure or default, pay, in addition to the amount of tax, an amount by way of simple interest calculated at the rate of one and a-half per cent. for each calendar month or part thereof on the amount of such tax.
(4) Where, in course of any proceeding, the prescribed authority finds that any dealer has--
(i) wrongly claimed either the whole or part of his turnover as not taxable and, has consequently, paid lesser amount of tax than payable by him; or
(ii) wrongly declared his turnover or any particulars thereof and thereby has reduced the amount of tax payable under this Act; or
(iii) wrongly claimed input tax credit in excess of what he is entitled to under this Act,
the dealer shall pay, in addition to the amount of tax assessed under any proceeding as aforesaid, simple interest at the rate of one and a half per cent. for each calendar month or part thereof on the difference of the amount previously admitted and tax finally assessed from the date, the tax would have been payable had the dealer not committed any of the acts mentioned in clause (i) or clause (ii) or clause (iii):
Provided that where the recovery of tax or any part thereof assessed under any proceeding under this Act is stayed as a result of an order on appeal or by any competent court, the amount of such interest shall be recoverable after the final order is passed and such order is confirmed from the date the tax first became due.
(5) If a dealer or a person has failed, without reasonable cause, to make payment of any amount of tax by the date specified in the notice issued under sub-section (2) or forthwith as required by the second proviso thereto, or in like manner has failed to make payment of tax and interest by the date extended under the first proviso of the said sub-section or has defaulted in payment of instalments or has not paid the amount of interest due, the prescribed authority, after giving the dealer a reasonable opportunity of being heard, may direct that the dealer shall pay, in the prescribed manner, by way of penalty for such failure, an amount which shall be five per cent. per month of the amount payable following the expiry of such date for each subsequent month and part thereof.
(6) Subject to the provisions of sub-sections (2), (4) and (5), any amount of tax, interest together with penalty, if any, which remains unpaid after the date specified in the notice issued under sub-section (2), or penalty imposed under sub-section (5) and remaining unpaid shall, without prejudice to any other mode of recovery, be recoverable as if it were an arrear of land revenue:
Provided that where an appeal in respect of such amount has been entertained under section 72, the appellate authority may, subject to such rules as may be made by the State Government under this Act, stay recovery of such amount or portion thereof for so long as the appeal remains pending or for such shorter period as the said authority may consider to be adequate.
Section 40 Advance recovery of tax on sales and supplies to Governments and other persons.
(1) Subject to the provisions of section 6, any person responsible for paying sale price or any amount purporting to be the full or part payment of sale price in respect of sales or supplies of taxable goods exceeding rupees two lakh fifty thousands during a year made to the State Government or the Central Government or a company, corporation, Board, authority, undertaking or any other body owned, financed or controlled either wholly or partly by the State Government or the Central Government, shall, at the time of payment, subject to such conditions and restrictions as may be prescribed, deduct an amount at the rate as may be specified by the State Government, by a notification, on account of tax on the amount of such payment:
Provided that the rate or rates to be specified by the State Government shall not be more than the rate of tax applicable to the goods sold or supplied.
(2) Notwithstanding any law or contract to the contrary, the person making such deduction shall be lawfully competent to make such deduction.
(3) The payment of the amount deducted under sub-section (1) into the Government Treasury in the prescribed manner, shall be the liability of the person making such deduction.
(4) The payment of the amount deducted under sub-section (1) into the Government Treasury by the person making the deduction shall be deemed to be a payment by or on behalf of the seller or supplier concerned.
(5) If any person contravenes any or all of the provisions of sub-sections (1), (3) and (4), he shall be liable to pay, by way of penalty, a sum not exceeding twice the amount of tax deductible under sub-section (1):
Provided that such penalty shall not be imposed unless the person contravening the provisions is given an opportunity of being heard by the prescribed authority.
(6) The provisions of sections 39 and 47 for recovery of any amount of tax due from a dealer shall, mutatis mutandis, apply for recovery of any amount of tax deducted or any penalty imposed but not deposited under this section.
Explanation.--For the purposes of this section, the person in this section shall include all officers or authorities who are competent or authorised to make payment of the sale-price in respect of sales to the State Government or the Central Government or to a company, corporation, Board, authority, undertaking or any other body owned, financed or controlled wholly or partly by the State Government or the Central Government.
(7) The provisions of sub-section (5) of section 41 shall, mutatis mutandis, apply, so far as it relates, to issuance of certificate to person from whose bills deduction has been made and for filing of quarterly statements by the person making the deductions.
Provided that the rate or rates to be specified by the State Government shall not be more than the rate of tax applicable to the goods sold or supplied.
(2) Notwithstanding any law or contract to the contrary, the person making such deduction shall be lawfully competent to make such deduction.
(3) The payment of the amount deducted under sub-section (1) into the Government Treasury in the prescribed manner, shall be the liability of the person making such deduction.
(4) The payment of the amount deducted under sub-section (1) into the Government Treasury by the person making the deduction shall be deemed to be a payment by or on behalf of the seller or supplier concerned.
(5) If any person contravenes any or all of the provisions of sub-sections (1), (3) and (4), he shall be liable to pay, by way of penalty, a sum not exceeding twice the amount of tax deductible under sub-section (1):
Provided that such penalty shall not be imposed unless the person contravening the provisions is given an opportunity of being heard by the prescribed authority.
(6) The provisions of sections 39 and 47 for recovery of any amount of tax due from a dealer shall, mutatis mutandis, apply for recovery of any amount of tax deducted or any penalty imposed but not deposited under this section.
Explanation.--For the purposes of this section, the person in this section shall include all officers or authorities who are competent or authorised to make payment of the sale-price in respect of sales to the State Government or the Central Government or to a company, corporation, Board, authority, undertaking or any other body owned, financed or controlled wholly or partly by the State Government or the Central Government.
(7) The provisions of sub-section (5) of section 41 shall, mutatis mutandis, apply, so far as it relates, to issuance of certificate to person from whose bills deduction has been made and for filing of quarterly statements by the person making the deductions.