Andhra pradesh act 028 of 1996 : Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses (Amendment) Act, 1996

Section 1. Short title and commencement

1. Short title and commencement.- (1) This Act may be called the Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses (Amendment) Act, 1996.

(2)(i) Sections 2 to 30 ??? 2 of the Schedule shall be deemed to have come into force from 1st August, 1996.

(ii) Item (1) of the Schedule shall come into force on such date as the Government may by notification publish in Andhra Pradesh Gazette.

Section 2. Amendment of the long title

2. Amendment of the long title.- In the Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses Act, 1987 (Act 24 of 1987) (hereinafter, referred to as the principal Act) in the long title, the words "in Hotels and Lodging Houses", shall be omitted.

Section 3. Amendment of Section 1

3. Amendment of Section 1.- In section 1 of the principal Act in sub-section (1) the words "in Hotels and Lodging Houses" shall be omitted.

Section 4. Amendment of Section 2

4. Amendment of Section 2.- In section 2 of the principal Act, (i) after clause (c) the following clause shall be inserted, namely:-

"(cc) ‘Corporate Hospital’ means, Hospital registered under the provisions of the Societies Registration Act which is in force in the State or the Companies Act, 1956 and where residential accommodation with or without board is provided for cash or deferred payment to any person or his attendant for undergoing treatment;

(ii) for clause (d), the following shall be substituted, namely:-

"(d) ‘concessional rate’ in relation to luxury means a rate lover than the normal rate fixed for such luxury or a rate lower than that fixed by the Government or any other authority under any law for the time being in force;"

(iii) for clause (g), the following shall be substituted, namely:-

"(g) ‘luxury provided in a hotel’ means the accommodation for residence provided in a hotel including air conditioning, television, radio, music, extra beds and the like but does not include the charges for food, drink and telephone calls;

(gg) ‘Luxury provided’ in a hospital means the accommodation provided in a corporate hospital for any ??? or his attendant including air conditioning television, radio, or any other service provided thereto in connection with the residence but does not include any charges for the medical services ??? in connection with the treatment or any amount charged for conducting any medical test or any medicines used by the hospital either for check up of treatment; and

(ggg) Luxuries includes luxuries provided in a hotels, and corporate hospital and any commodities as specified in the Schedule for enjoyment ever and above the necessaries of life."

(iv) for clause (j) the following shall be substituted, namely:-

"(j) ‘proprietor’ include ??? and in relation to ??? corporate hospital any person ??? for the management thereof."

(v) after clause (j) the ??? shall be inserted, namely:-

"(jj) ‘receipt’ in relation to a tobacconist means,-

(a) in respect of supply of the luxuries, like tobacco products made by him or by others on his behalf by way of sale, the amount of valuable consideration received or receivable by him for such sale including any sum charged for anything done by him in respect of the tobacco products so sold at the time of or before the delivery thereof and the price, if charged separately, of any primary or secondary packing; and

(b) in respect of the supply of luxuries of tobacco products made, by him otherwise than by way of sale, the normal price at which such tobacco products are sold.

Explanation:- For the purpose of this Act the term "normal price" shall have the same meaning as assigned to it in section 4 of the Central Excise and Salt Act, 1944 (Central Act 1 of 1944);

(jjj) "receipt" in relation to a hotel or a corporate hospital means the total amount of valuable consideration received or receivable for the luxuries provided in hotel or corporate hospital;

(jjjj) "Registered Tobacconist" means a tobacconist registered under section 4-A of this Act;

(jjjjj) "Schedule" means the Schedule appended to this Act;"

(vi) after clause (k), the following shall be inserted, namely:-

"(kk) ‘turnover of receipts in the case of a tobacconist’ means the aggregate of the amounts of receipts of a tobacconist in a year in respect of the supply of luxuries relating to tobacco products whether such supply is by way of sale or otherwise;

"(kkk) ‘Tobacconist’ means a person who supplies whether by way of sale or otherwise luxuries like, tobacco, products manufactured by him or purchased from other States or from other persons in this State and includes any person who for the purpose of Business gets the manufacturing done from any person whether or not on job work basis."

"(kkkk) ‘tobacco products’, means all goods and preparations made of tobacco or tobacco substitutes including cigarettes, cigars, cheroots and chewing tobacco commonly known as ‘Khara Masala’ kimam, Zarda, Dokta, Sukha and Surti".

(vii) After clause (1) the following shall be inserted, namely:-

"(m) words and expressions used but not defined is this Act and defined in the General Sales Tax Act, shall have the meanings respectively assigned to them under that act."

Section 5. Amendment of section 3

5. Amendment of section 3.- In the principal Act, in section 3, in sub-section (1) for the opening portion, the, following shall be-substituted, namely:-

"Subject to the provisions of the Act, there shall be levied and collected from every person residing in a hotel or a corporate hospital where the rate of charge in respect of any luxury provided in a hotel to him is Rs. 60/- or more per day per person, a tax at the rate of ten per centum of such rate and from every person residing in a corporate hospital where the rate of charge in respect of any luxury provided in a corporate hospital to him is Rs. 500/- or more per day, a tax at the rate of ten per centum of such rate;

(ii) in the proviso for the words, "customs of the hotel" the words "customs of the hotel or corporate hospital" shall be substituted.

Section 6. Insertion of new section 3A

6. Insertion of new section 3A.- After section 3 of the principal Act, the following section shall be inserted, namely:-

"Tax on Tobacconist - 33A(1) Subject to the provisions of this Act, there shall be levied and collected a tax, on the turnover of receipts of a tobacconist relating to the supply of luxuries, namely, tobacco products, specified in the schedule by way of sale or otherwise, at the rate of tax and at the joint of levy, specified in the schedule:

Provided that, a tobacconist, whose turnover of receipts in a year is less then rupees two lakhs shall be exempt from tax:

Provided further that a tobacconist who sells tobacco products in a small bunk shall be exempt from payment of tax on his turnover of receipts irrespective of she quantum of the turnover of receipts in a year:

Provided also that no tax under this sub-section shall be payable on that part of the turnover of receipts which relates to:

(i) the tobacco products which are supplied by way of consignment to another State, whether the consignment is to himself or to any other person and in support of such claim, the proprietor produces, on demand a certificate as may be prescribed; and

(ii) the tobacco products which are supplied by way of sale in the course of inter-State trade or commerce or by way of sale in the course of export, outside the territory of India and in support thereof the proprietor produces such proof of such sale or export as may be prescribed.

(2) The net turnover on which a tobacconist shall be liable to tax shall be determined after making such, deductions from his turnover of receipt and in such manner as may be prescribed.

(3) For the purpose of sub-clauses (i) and (ii) of sub-section (1), a sale shall be deemed to have taken place;-

(i) in the course of inter-State trade, if such supply has occasioned the movement of tobacco products front Andhra Pradesh to any other State; and

(ii) in the course of export outside the territory of India if the supply of Luxuries occasions such export.

(4) The tax levied under this section shall be payable by the proprietor in such period and such manner as may be prescribed."

Section 7. Insertion of new section 4A

7. Insertion of new section 4A.- After section 4 of the Principal Act, the following section shall be inserted, namely:-

4A. "Registration.- (1) No tobacconist shall conduct or cause to be conducted business in Andhra Pradesh unless he obtains, on application, a registration in the prescribed form:

Provided that any tobacconist who sells tobacco products in a small bunk shall be exempt from registration.

Explanation: For the purpose of this Act, a tobacconist who sells in a small bunk means a person who does business in a shop or other premises whose floor area is not more than 64 sq. ft. without employing paid labour for conducting the business.

(2) Every tobacconist required to obtain a registration under sub-section (1) shall make an application in this behalf to such authority and accompanied by a fee of rupees five hundred.

(3) where it appears necessary to the prescribed authority to whom an application is made for registration under sub-section (2), he may for the proper realisation of tax and other dues payable under this Act, by an order in writing and for reasons to be recorded therein, impose a condition for the issue of a certificate of registration to the effect that the dealer, shall furnish such security in such manner and within such time as may be specified in the order.

(4) If the prescribed authority is satisfied that the application is in order he shall register the application and issue the Certificate of Registration in such form as may be prescribed.

(5) Where a registration has been granted to a tobacconist under sub-section (4), the prescribed authority may, if it is of opinion that it is necessary or expedient so to do for the proper realisation or recovery of the luxury tax under this Act, at any time while such registration is in force, by an order in writing and for reasons to be recorded therein, require a tobacconist to furnish within such period and in such manner as may be prescribed, a security for the proper payment of the luxury tax payable by him under this Act:

Provided that no order shall be passed without giving the tobacconist an opportunity of being heard.

(6) A tobacconist until his registration is cancelled shall be liable to pay the fees of rupees five, hundred every year subsequent to that in which he applied for registration.

(7) Where any tobacconist has more than one place of business (other than place used mainly for storage of tobacco products) he shall apply for registration and obtain a separate registration certificate in respect of each place of business on payment of a sum of rupees one hundred for each such place of business.

(8) The prescribed authority may, on application or otherwise, amend the certificate of registration of a tobacconist.

(9) Where the liability of a tobacconist to whom a Certificate of Registration has been granted under sub-section (4) to pay, the luxury tax under this Act has ceased, such registration certificate may, on application by him be cancelled by the prescribed authority in the manner prescribed.

(10) A registration granted to a tobacconist under sub-section (4) may be cancelled by the prescribed authority after due notice to such tobacconist if it is satisfied that he has failed to pay the luxury tax penalty or interest payable under this Act or to furnish the security under sub-section (5):

Provided that the registration so canceled may be restored if the tobacconist to whom the licence was granted pays the arrears of luxury tax, penalty and interest and furnishes a receipted challan therefore."

Section 8. Amendment of section 5

8. Amendment of section 5.- In the principal Act in section 5, after sub-section (1), the following shall be added, namely:-

"(1A) Where no separate charges for luxury provided in a corporate hospital and for the medical services rendered are specified, but a consolidated payment is required to be made both for luxury provided and for the medical services rendered, the assessing authority, may from time to timer, after giving the proprietor an opportunity, of being heard, fix a separate rate of charges for such luxury and for the medical services for the purpose of calculating tax under this Act."

(2) in sub-section (2) for the words "luxury provided in a hotel" the words "luxury provided in a hotel or a corporate hospital" and for the words "luxury provided in the hotel" the words "luxury provided in the hotel or the corporate hospital" shall respectively be substituted;

(3) in sub-section (3) for the words "provided in a hotel to any person not being, an employee of the hotel" the words "provided in a hotel or a corporate hospital to any person not being an employee of the hotel or the corporate hospital" and for the words "proprietor of the hotel" the words "the proprietor of the hotel or the corporate hospital" shall respectively be substituted.

(4) in sub-section (4) for the words "provided in a hotel" the words "provided in a hotel or in a corporate hospital" shall be substituted.

Section 9. Amendment of section 6

9. Amendment of section 6.- In section 6 of the principal Act,

(i) in sub-section (1) for the words "under this Act" the expression "under section 3" shall be substituted;

(ii) after sub-section (1) the following shall be inserted, namely:-

"(1A) Every proprietor liable to pay tax under section 3A shall file returns in such form and in such manner and within such time as may be prescribed";

(iii) in sub-section (3) for the expression "under sub-section (1)" the expression "under sub-sections (1) or (1A)" shall be substituted.

Section 10. Amendment of section 7

10. Amendment of section 7.- In section 7 of the principal Act, in sub-sections (1), (2) and (3), for the expression "sub-section (1) of section 6", the expression "sub-sections (1) or (1A) of section 6, as the case may be" shall be substituted.

Section 11. Insertion of new section 7A

11. Insertion of new section 7A.- After section 7 of the principal Act, the following section shall be inserted, namely:

7A. Provisional assessment.- (1) Tax payable under this Act for each year may be provisionally assessed in advance during the year and paid in monthly or prescribed instalments in respect, of such class or category of proprietors liable to tax under section 3A on the basis of estimated or actual turnover of the proprietor and for that purpose such proprietor may be required to submit a return of estimated or actual turnover and pay the tax on the basis of such return or periodical returns, in such manner as may be prescribed.

(2) If the assessing authority has reason to believe that the provisional assessment for any period was made on too low a turnover or at too low a rate, or on too high a turnover or too high rate he may enhance or reduce, as the case may be, such provisional assessment:

Provided that before making an enhancement of the provisional assessment as aforesaid the assessing authority shall, except where such enhancement is based on the turnover finally determined for the preceding year, issue a notice thereof, to the proprietor and make such enquiry as he deems necessary.

(3) The tax provisionally assessed may be levied and collected, either, in advance during the year in monthly or other prescribed instalments or at any time thereafter in lumpsum."

Section 12. Amendment of section 9

12. Amendment of section 9.- In section 9 of the principal Act in sub-section (1) in clauses (a) and (b), for the expression "sub-section (1) of section 6" the expression "sub-sections (1) or (1A) of section 6, as the case may be" shall be substituted.

Section 13. Amendment of section 10

13. Amendment of section 10.- In section 10 of the principal Act, it sub-section (1), for the words "the Commissioner, or any other officer authorised, by him", the words "the Deputy Commissioner" shall be substituted.

Section 14. Insertion of new section

14. Insertion of new section.- After section 10 of the principal Act, the following sections shall be inserted namely:-

10A. "Attachment of property.- (1) Where, during the pendency, of any proceedings for the assessment of any turnover or for the reassessment of any turnover which has escaped assessment, the assessing authority is of the opinion that for the purpose of protecting the interest of revenue it is necessary so to do, he may with the previous approval of the Commissioner, by order in writing, attach provisionally any property belonging to the assessee.

(2) Every such provisional attachment shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1):

Provided that the Commissioner may, for reasons to be recorded, in writing, extend the aforesaid period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years."

10B. Powers of Deputy Commissioner.- (1) A Deputy Commissioner shall have the power of a Collector under the Andhra Pradesh Revenue Recovery Act, 1864, (Act 11 of 1864) for the purpose of recovery of any amount due under this Act.

(2) Subject to the provisions of sub-section (3), all Deputy Commercial Tax Officers shall, for the purposes of recovery of any amount due under this act, have the powers of the Mandal Revenue Officer under the Andhra Pradesh Rent and Revenue Sales Act, 1839 for the sale of property distrained for any amount due under this Act.

(3) Notwithstanding anything contained in the Andhra Pradesh Rent and Revenue Sales Act, 1839, (Act VII of 1839) the Deputy Commercial Tax Officer in the exercise of the powers conferred by sub-section (2) shall be subject to the control and superintendence of the Deputy Commissioner."

Section 15. Amendment of section 12

15. Amendment of section 12.- In the principal Act, for section 12 the following shall be substituted; namely:

"(1) The Commissioner may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, (and if such order or proceeding recorded is prejudicial to the interest of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding) and may pass such order in reference thereto as it thinks fit.

(2) Powers of the nature referred to in sub-section (1) may also be exercised by an Additional Commissioner, Joint Commissioner Deputy Commissioner, and Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, Officers or persons subordinate to them.

(3) In relation to an order of assessment passed under this Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed.

(4) No order shall be passed under sub-section (1) or sub-Section (2) enhancing any assessment unless an opportunity has been given to the assessee to show cause against the proposed enhancement."

Section 16. Insertion of new section 12A

16. Insertion of new section 12A.- In the principal Act, after section 12 the following Section shall be inserted, namely:-

"12A. Appeal and Revision.- All the provisions of the Andhra Pradesh General Sales Tax Act, 1957 relating to Appeals before the Sales Tax Appellate Tribunal, Revisions by the High Court of Andhra Pradesh and appeals to High Court of Andhra Pradesh shall apply mutadis mutandis in regard to appeals under this Act."

Section 17. Amendment of section 15

17. Amendment of section 15.- In section 15 of the principal Act, in sub-section (1) for the opening words "Any person who being a proprietor liable to pay tax under this Act:" the words "Any proprietor who" shall be substituted.

Section 18. Amendment of section 17

18. Amendment of section 17.- In section 17 of the principal Act, for sub-section (1), the following shall be substituted, namely:-

"(1) The prescribed authority may accept, from any proprietor who has committed or is reasonably suspected of having committed an offence under this Act, by way of composition of such offence,-

(a) where the offence consists of the failure to pay or the evasion of any tax, recoverable under this Act, in addition to the tax so recoverable a sum of money not exceeding two thousand rupees or double the amount of the tax recoverable, whichever is greater; and

(b) in other cases a sum of money not exceeding two thousand rupees".

Section 19. Amendment of section 19

19. Amendment of section 19.- In section 19 of the principal Act, the words "of a hotel liable to pay tax under this Act", shall be omitted.

Section 20. Amendment of section 20

20. Amendment of section 20.- In section 20 of the principal Act,-

(i) in sub-section (1), for the words "luxury provided in the hotel", the words "luxury provided in the hotel, corporate hospital or supply of luxuries by way of sale or otherwise", shall be substituted;

(ii) in sub-section (2) for the words "the luxury provided in hotel", the words "proprietor" shall be substituted;

(iii) after sub-section (3), the following sub-sections shall be inserted, namely:

"(3A) The assessing authority shall have the power to seize and confiscate any tobacco products which are found in any office, shop, godown, vehicle, vessel or any other place of business or any building or place of the tobacconist but not accounted for by the tobacconist in his accounts, registers and other documents maintained in the course of his business:

Provided that before taking action for the confiscation of goods under this sub-section, the officer shall give an opportunity to the person affected of being heard and make an enquiry in the prescribed manner";

(iv) for sub-section (4) the following shall be substituted, namely:

"(4) for the purpose of this Act, any officer of the Commercial Tax Department, not below the rank of the Deputy Commercial Tax Officer may enter and search any hotel, corporate hospital or any place of business of proprietor or any other place where such authority has reason to believe that the proprietor keeps or is for the time being keeping any records, accounts, registers or other documents of his business in relation to the Hotel, Corporate Hospital or supply of luxuries like tobacco products in relation to a tobacconist:

Provided that no residential accommodation (not being shop-cum-residence) shall be entered into and searched by any such officer below the rank of a Deputy Commissioner except on the authority of an order issued by any officer not below the rank of a Deputy Commissioner having jurisdiction over the area. All searches under this sub-section so far as may be made in accordance with the provisions of Code of Criminal Procedure, 1973, (Act 11 of 1974) subject to the rules if any made in this behalf."

Section 21. Insertion of new section 20A

21. Insertion of new section 20A.- After section 20 of the principal Act, the following sections shall, be inserted, namely:-

20A. "Possession, submission of certain records by owners.- The owner or other person-incharge of a vehicle carrying tobacco products shall carry with him.

(a) a bill of sale or delivery note;

(b) goods vehicle record or trip sheet and such other documents as may be prescribed, relating to the tobacco products under transport and containing such particulars as may be prescribed and shall submit to the assessing authority having jurisdiction over the area in which the tobacco products are delivered, the documents authorised or copies thereof within such time as may be prescribed.

20B. Inspection of goods while in transit.- (1) Any Officer empowered by the State Government in this behalf may stop the vehicle or boat, as the case may be carrying tobacco products and keep it stationary as long as may reasonably be necessary, to examine the contents in the vehicle or boat and may inspect all records relating to the tobacco products carried, which are in the possession of such driver or other person-in-charge of the vehicle.

(2) If on such examination and inspection it appears,

(a)(i) that the tax, if any payable under this Act in respect of the sale or purchase of the tobacco products carried, has been paid; or

(ii) that the sale or purchase of the tobacco products carried for the purpose of payment of tax under this Act, has been properly accounted for in the documents referred to in clause (b) of this section; the said officer shall release the goods vehicle or boat with the tobacco products carried; or

(b)(i) that the tax, if any payable under this Act in respect of the sale or purchase of the tobacco products carried has not been paid; or

(ii) that the sale or purchase of the tobacco products, for the purpose of payment of tax under this Act, has not been properly accounted for in the documents and if the said officer is satisfied, after making such enquiry as he deems fit, that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the tobacco products carried, it is necessary to detain the tobacco products and direct the driver or any other person-in-charge of the goods, vehicle or boat,-

(i) to pay such tax; or

(ii) to furnish security for an amount equal to five times the amount of tax payable in such form and in such manner and to such authority as may be prescribed, on behalf, of the person liable to pay such tax.

(3) If the tax is paid or the security is furnished, then the goods so detained shall be released forthwith.

(4) The driver or any other person in-charge of the goods vehicle or boat shall, if so required give his name and address and the name and address of the owner of the goods vehicle or boat as well as those of the consignor and the consignee of the tobacco products.

(5) If the tax directed to be paid or the security directed to be furnished under sub-section (2) is not paid or furnished and if the said officer is satisfied, after making such enquiry, as he deems fit, that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the tobacco products carried, it is necessary to detain the goods, he shall detain so much of the tobacco products as are approximately equal in value to the amount of tax directed to be paid and security directed to be furnished under sub-section (2) as long as may reasonably be necessary:

Provided that no such tobacco products shall be detained by the said officer for more than three days except with the permission of the higher authority.

(6) Where tobacco products are carried without, paying tax, if any, payable under this Act, or tobacco products are carried without being properly accounted for in the documents referred to in clause (b) of sub-section (2). The said officer shall collect the tax payable on the tobacco products so carried and in addition levy a penalty not exceeding five times the amount of tax payable on such goods after giving a reasonable opportunity to the person likely to be affected, against the proposed penalty."

Section 22. Insertion of new section ??? and 30

22. Insertion of new section ??? and 30.- After section 28 of the principal Act, the following section shall be added namely:

29. Power of State Government to notify exemptions and reductions of tax or interest.- (1) The State Government may, by notification in the Andhra Pradesh Gazette, make an exemption, or reduction in rate, in respect of any tax or interest payable under this Act,-

(i) on the sale or supply of specified tobacco products at all points or at any specified point or points in a series of sales or purchases by successive dealers: or

(ii) by any specified class of persons, in regard to the whole or any part of their turnover.

(2) Any exemption from tax or interest or reduction in the rate of tax notified under sub-section (1)-

(a) may extend to the whole of the State or to any specified area or areas therein;

(b) may be subject to such restrictions and conditions as may be specified in the notification."

(1) Power to amend schedule 30.- The Government may, by notification, alter, add to or cancel any of the schedules.

(2) Where a notification has been issued under sub-section (1), there shall unless the notification is in the meantime rescinded, be introduced in the Legislative Assembly, as soon as may be, but in any case during the next session of the Legislative Assembly following the date of the issue of the notification, a Bill on behalf of the Government, to give effect to the alteration, addition or cancellation as the case may be, of the schedule specified in the notification, and the notification shall cease to have effect when such Bill becomes law, whether with or without modifications, but without prejudice to the validity of anything previously done thereunder:

Provided that if the notification under sub-section (1) is issued when the Legislative Assembly is in session, such a Bill shall be introduced in the Legislative Assembly during that session:

Provided further that where for any reason a Gill as aforesaid does not become law within six months from the date of its introduction in the Legislative Assembly, the notification shall cease to have effect on the expiration of the said period of six months.

(3) All references made in this Act, to any of the Schedules shall be construed as relating to the schedules as for the time being amended in exercise of the powers conferred by this section.

SCHEDULE

Section 23. Repeal of Ordinance 20 of 1996

23. Repeal of Ordinance 20 of 1996.- The Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses (Amendment) Ordinance, 1996 is hereby repealed.