Himachal pradesh act 018 of 1991 : Himachal Pradesh General Sales Tax (Amendment and Validation) Act, 1991

Section 1. Short title

1. Short title.- This Act may be called the Himachal Pradesh General Sales Tax (Amendment and Validation) Act, 1991.

Section 2. Amendment of section 4

2. Amendment of section 4.- In clause (c) of sub-section (6) or section 4 of the Himachal Pradesh General Sales Tax Act, 1968 (24 of 1968) (hereinafter referred to as the principal Act), the words "tandoor", "loh", "dhaba", "halwai shop" and "Indian" shall he omitted.

Section 3. Amendment of section 12

3. Amendment of section 12.- In sub-section (4) of section 12 of the principal Act-

(a) for the words "District Excise and Taxation Officer" wherever these occur, the words "Assistant Exercise and Taxation Commissioner or Excise and Taxation Officer In-charge of the District" shall be substituted;

(b) in the first proviso, for the words "local Scheduled Bank", the words "local branch of a Scheduled Bank" shall be substituted and after the first proviso so amended, but before the second proviso, the following new proviso shall be inserted, namely:-

"Provided further that where the payment is made through a crossed cheque, such crossed cheque must be delivered in the office of the assessing authority concerned, not less than, ten clear days before the expiry of the due date prescribed under sub-section (3) for filing the return, and the dealer shall be deemed to have made the payment on the date on which such crossed cheque, after its presentation in the bank, is actually credited into the Government account and necessary receipt is issued by the bank in favour of the dealer:"

Section 4. Insertion of section 12-A

4. Insertion of section 12-A.- After section 12 of the principal Act, the following section 32-A shall be inserted, namely:-

"12-A. Tax deduction from the bills invoices of the works contractors.- (1) Notwithstanding anything to the contrary contained in section 13, every person making any payment or discharge of any liability on account of valuable consideration payable for the transfer of property in goods, whether as goods or in some other form, involved in the execution of works contract shall deduct an amount not exceeding four per centum, as may be prescribed, purporting to be a part or full of the tax payable on such sales, from the bills or invoices raised by the works contractor as payable by the person:

Provided that no such payment or discharge of any bill raised by the works contractor shall be made without deduction:

Provided further that if the State Government is satisfied that it is necessary to do so in the interest of the State revenue, it may notify the names/posts of such persons who shall be competent persons to make such deduction.

(2) The deduction referred to in sub-section (1) shall be made in the manner which may be prescribed.

(3) The payment of such deduction into the Government treasury shall be the responsibility of the person making such deduction.

(4) The person making such deduction shall issue deduction certificate in the prescribed manner to the person or dealer from whose bill or invoke such deduction has been made.

(5) If any person contravenes any or all of the provisions of sub-sections (1), (3) and (4), the prescribed authority shall, after giving an opportunity of being heard, by an order in writing, direct that such person shall pay by way of penalty, a sum not exceeding twice the amount of tax deductible under sub-section (1).

(6) The provisions of sections 16 and 16-A for recovery of any amount of tax due from a dealer shall nnuatis mutandis apply for recovery of any amount of tax, deducted and/or any penalty imposed but not deposited under this section.

Section 5. Insertion of section 16-A

5. Insertion of section 16-A.- After section 16 of the principal Act, the following section 16-A shall be inserted, namely:-

"[6-A. Special mode of recovery.- (1) Notwithstanding anything contained in section 16 or any law or contract to the contrary, Commissioner or any officer other than an Excise and Taxation Inspector, appointed under section 3 to assist the Commissioner, may at any time or from time to time, by notice in writing, a copy of which shall be sent to the dealer at his Inst address known to the officer issuing the notice, require-

(a) any person from whom any amount is due or may become due to a dealer who has failed to comply with a notice of demand for any amount due under this Act;

(b) any person who holds or may subsequently hold any money for or on account of such dealer;

to pay into the Government treasury in the manner specified in the notice issued under this sub-section, either forthwith or upon the money becoming due or being held, or at or within the time specified in the notice (not being before the money becomes due or it is held), so much of the money as is sufficient to pay the amount due from the dealer in respect of the arrears of tax interest and penalty under this Act, or the whole of the money when it is equal to or less than that amount.

Explanation.- For the purposes of this sub-section, the amount due to a dealer or money held for or on account of a dealer by any person shall be computed after taking into account such claim, if any, as may have fallen due for payment by such dealer to such person and as may be lawfully subsisting.

(2) The officer issuing a notice under sub-section (1) may at any time, or from time to time, amend or revoke any such notice or extend the time for making any payment in pursuance of the notice.

(3) Any person making any payment in compliance with a notice issued under sub-section (1) shall be deemed to have made the payment under the authority of the dealer and the treasury receipt for such payment shall constitute a good and sufficient discharge of the liability of such person to the extent of the amount specified in the receipt.

(4) Any person discharging any liability to the dealer after service on him of the notice issued under sub-section (1) shall be personally liable to the State Government to the extent of the liability discharged or to the extent of the liability of the dealer for tax, interest and penalty, whichever is less.

(5) Where a person on whom a notice is served under sub-section (1) proves to the satisfaction of the officer who issued the notice that the sum demanded or any part thereof was not due to the dealer or that he did not hold any money for or on account of the dealer, at the time the notice was served on him, then nothing contained in this section shall be deemed to require such person to pay into the Government treasury any such money or part thereof, as the case may be.

(6) Any amount of money which a person is required to pay under sub-section (1), or for which lie is personally liable to the State Government under sub-section (4) shall, if it remains unpaid, be recoverable as an ??? of land revenue.

(7) The provisions of this section shall be without prejudice to any action that may be taken for the recovery of the arrears of tax, interest and penalty, if any, due from the dealer.

Section 6. Amendment of section 30

6. Amendment of section 30.- In sub-section (5) of section 30 of the principal Act, for the word "tax" wherever it occurs, the words and brackets "tax (including interest payable)" shall be substituted.

Section 7. Substitution of section 35 and insertion of sections 35-A and 35-B

7. Substitution of section 35 and insertion of sections 35-A and 35-B.- For section 35 of the principal Act, the following section 35 shall be substituted and thereafter following sections 35-A and 35-B shall be inserted, namely:-

"35. Offences and penalties.- (1) Any person who-

(a) wilfully acts in contravention of the provisions of this Act or the rules made thereunder; or

(b) furnishes a certificate under sub-section (2) of section 6, which he knows or has reason to believe it to be false; or

(c) being a registered dealer, falsely represents when purchasing any class of goods for use by him in the manufacture of any goods for sale, that goods of such class are covered by his certificate of registration; or

(d) not being a registered dealer, falsely represents when purchasing goods in Himachal Pradesh that he is a registered dealer; or

(e) after purchasing any goods for any of the purposes specified in the Act, fails, without reasonable excuse, to make use of the goods for any such purpose; or

(f) has in his possession any form issued under the Act on payment by the Government, which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; or

(g) prevents inspection or examination of books, documents and accounts or wilfully fails to produce such books, documents and accounts mentioned in section 20; or

(h) fails to carry with him any of the records or documents specified in section 22: or

(i) makes any statement or declaration in any of the documents specified in section 22 or section 22-A, as the case may be, which statement or declaration he Knows, or has reasons to believe, to be false; or

(j) in any way is knowingly concerned in any fraudulant evasion or attempt at evasion or abetment of evasion of any tax payable in respect of the sale or purchase of any goods under this Act; or

(k) if he is a driver or any other person in-charge of goods vehicle or vessel or an owner of the goods refuses on demand by the officer-in-charge of the check post or barrier or any other officer, not below the rank of an Excise and Taxation Inspector, to give his name and address or the name and address of the owner of the goods vehicle or of the consignor or consignee of the goods or gives any name and address of any of these persons which he knows or has reason to believe to be false; or

(l) aids or abets any person in the commission of any offence specified in this sub-section;

he shall, without prejudice to the recovery of any tax or interest or penalty which may be due from him, be punishable with simple imprisonment which may extend to six months, or with fine, or with both; and when the offence, is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.

(2) Whosoever contravenes or fails to comply with, any of the provisions of this Act or the rules made thereunder, or any order or direction made or given thereunder, shall, if no other penalty is provided either under sub-section (1) of this section or under any other provisions of this Act for such contravention or failure, be liable to imposition of a penalty, not exceeding two thousand rupees, and where such contravention or failure is continuing one, to a daily penalty not exceeding fifty rupees during the period of the continuance of the contravention or failure.

(3) Any officer-in-charge of the check post or barrier or any other officer not below the rank of an Excise and Taxation Officer, appointed under sub-section (1) of section 3 or such, other officer as the State Government may, by notification, appoint, may, after affording to the person concerned a reasonable opportunity of being heard, impose the penalty mentioned in sub-section (2):

Provided that the officer-in-charge of the check post or a barrier shall exercise such powers only at such check posts or barriers.

35-A. Imposition of penalty in lieu of prosecution.-If any person specified in sub-section (1) of section 35 is guilty of an offence under that sub-section, any officer in-charge of a check post or barrier or any other officer not below the rank of an Excise and Taxation Officer appointed under sub-section (1) of section 3, or such other officer as the State Government may, by notification, appoint, within his jurisdiction, may, after affording to the person concerned a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one and a half times the lax which would have been levied under this Act in respect of the sale to him of the goods, if the sale had been a sale falling within this Act:’

Provided that the penalty in case of non-taxable goods shall be calculated as if such goods were liable to lax at the rate of ten paise in a rupee:

Provided further that the penalty for offences under sub-section (7) of section 12 shall be imposed under the same sub-section:

Provided further that no prosecution for an offence under sub-section (1) of section 35 shall be instituted in respect of the same facts on which a penalty has been imposed under this section or sub-section (7) of section 12.

35-B. Cognizance of offences.- (1) No court shall take cognizance of any offence punishable under this Act or the rules made thereunder except with previous sanction of the Government or of such officer as may be authorised by a notification published in the Official Gazette and no Court inferior to that of a Magistrate of the first class shall try any such offence.

(2) All offences punishable under sub-section (1) of section 35 of this Act, shall be cognizable and bailable".

Section 8. Amendment of section 40

8. Amendment of section 40.- In sub-section (2) of section 40 of the principal Act-

(a) after clause (h) the following clause (hh) shall be added, namely:-

"(hh) the manner in which deductions are to be made and the deduction certificate is to be issued under sub-sections (1) and (4) of section 12-A;"; and

(b) after clause (r) the following clauses (rr) and (rrr) shall be added, namely:-

‘(rr) the form and the manner in which the certificate under section 42-B is to be furnished;

(rrr) the restrictions and conditions subject to which and the manner in which the set off under sub-section (2) of section 42-C is to be granted;".

Section 9. Substitution of section 42

9. Substitution of section 42.- For section 42 of the principal Act, the following section shall be substituted, namely:-

"42. Power to exempt.- (1) The Government if satisfied that it is necessary or expedient so to do in the interest of cottage industries or small scale industries may, by notification, exempt either wholly or to such extent only as may be specified in the said notification any class of co-operative societies or persons from the payment of tax leviable on the sale of goods manufactured by such societies/or persons subject to such conditions as may be specified in such notification,

(2) Every notification issued under sub-section (1) shall, as soon as may be after it is issued, be laid before the State Legislature".

Section 10. Insertion of sections 42-A, 42-B, 42-C and 42-D

10. Insertion of sections 42-A, 42-B, 42-C and 42-D.- After section 42 of the principal Act, the following sections 42-A, 42-B, 42-Cand 42-D shall be inserted, namely:-

"42-A Special provisions relating to deferred payment of tax by industrial units.- (1) Notwithstanding anything contained in any other provisions of this Act, if the Government is of the opinion that with a view to provide incentives to the entrepreneurs setting up new industrial units in the State For manufacturing goods for sale, it is necessary or expedient in the pubic interest so to do, it may, under a scheme notified in this behalf under this Act and subject to such restrictions and conditions as may be specified in such scheme provide for deferred payment of tax payable under section 12 by such entrepreneur who is registered as a dealer under this Act.

(2) Subject to the provisions of sub-section (1), the entrepreneur referred to therein, if eligible for grant of facility of deferred payment of tax under the scheme notified under sub-section (1) may make deferred payment of tax payable on the sale of goods manufactured by him.

42-B. Concessional rate of tax on certain raw materials.-Notwithstanding anything contained in this Act, but subject to such restrictions and conditions as may be specified, the State Government may, if it is expedient in the public interest so to do, by notification exempt wholly or fix a concessional rate of fax, on the sale, to an entrepreneur, of goods, specified in his certificate of registration, for use by him as raw material in the manufacture in Himachal Pradesh of any goods-

(a) for sale in the State of Himachal Pradesh; or

(b) for sale in the course of inter-state trade or commerce:

Provided that the tax on such sales shall be levied at full rates fixed under section 6 unless the dealer making the sale to such entrepreneur furnishes to the assessing authority in the prescribed form and manner a certificate duly filled in and signed by the eligible entrepreneur.

42-C. Set off of tax in respect of tax paid goods in certain circumstances.- (1) Subject to such restrictions-and conditions as may be prescribed, a set off, as provided in sub-section (2), shall be granted in such manner as may be prescribed, to a registered dealer in respect of tax paid goods in the circumstances mentioned in sub-section (2).

(2) When the registered dealer purchases any goods, which have suffered tax either under subjection (2) of section 6 at full rates or under section 42 or section 42-B at the concessional rates, for use of such goods as raw-material in the manufacture in Himachal Pradesh of any goods for sale, he shall be entitled to a set off of tax equal, to the difference between the aggregate liability or, the sale of final product minus the amount of tax already paid by the selling dealer.

42-D. Penalty for utilisation of goods for other purposes.-Where any goods purchased, by a registered dealer either under sub-section rates, for use by him in the manufacture of any goods in Himachal Pradesh, other than goods declared tax free under section 7-

(a) for sale in the State of Himachal Pradesh; or

(b) for sale in the course of inter-State trade or commerce; are utilised by him for any purpose other than those specified in clause (a) or (b) such dealer shall be liable to pay as penalty, such amount not less than the difference between the amount of tax on the Sale of such goods at the full rate applicable thereto under section 6 and the amount of tax payable under sub-section 42 of section 42 or sub-section (1) of section 42-B, but not-exceeding one and a half times the amount of tax payable at such full rate, as any officer appointed under sub-section (1) of section 3 may, by order, imposed;

Provided that no order imposing such penalty shall be passed under this section, unless such dealer has been given a reasonable opportunity of being heard."

Section 11. Validation and exemption

11. Validation and exemption.- (1) The provisions of section 6 of the principal Act, as amended by section 4 of the Himachal Pradesh General Sales Tax (Amendment) Act, 1991 (5 of 1991) shall be deemed to be and to have always been valid and effective from the 1st day of April, 1991 irrespective of the fact that the said Act, after having been passed by the State Legislature on 20th day of March, 1991, has been assented to on 18th day of April, 1991 and published in the Official Gazette on 20th day of April, 1991 and accordingly;-

(a) the tax leviable in pursuance of the notification No. EXN-F(11)-1/91, dated the 2nd May, 1991 published in the extra-ordinary issue of the Official Gazette dated 3rd May, 1991 and notification No. EXN-F(11)-1/91, dated 13th June, 1991 published in the extraordinary issue of the Official Gazette dated the 15th June, 1991 at the rates of 8, 11, 7.5.30 and 3.5 paise in a rupee shall be deemed to be and shall be deemed always to have been levied with effect from 1st day of April, 1991, and

(b) the tax leviable in pursuance of notification No. EXN-F(11)1/91, dated 13th June, 1991 published in the extra-ordinary issue of the Official Gazette dated 15th June, 1991 at the rate of 2.5% for the first five years and at the rate of 4.5% for the next five years in respect of goods leviable to general sales tax at the rate of 8% and in case of goods leviable to general sales tax upto the rate of 11 %, the rate of 4% for the first five years and 6% for the next five years shall be deemed to be and shall be deemed always to have been levied with effect from 1st day of April, 1991;

and notwithstanding any judgement or decree or order of any court, tribunal or authority to the contrary no notification which was issued under section 6 of the Himachal Pradesh General Sales Tax Act, 1963 (24 of 1968) as amended by the Himachal Pradesh General Sales Tax (Amendment) Act, 1991 (5 of 1991) before the commencement of this Act and which levied or authorised the levy of or purported to levy or authorise the levy of the tax (hereafter in this section referred to as the aforesaid tax) at enhanced rate shall be deemed to be invalid or ever to have been invalid on the ground merely that the authority issuing such notifications did not have competence to issue such notification, and accordingly-

(i) all the aforesaid taxes levied or collected or purporting to have been levied or collected under section 6 of the principal Act before the commencement of this Act shall be deemed and be deemed always to have been validly levied or collected in accordance with law;

(ii) no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for the refund of, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing the refund of any such aforesaid tax which has been collected;

(iii) recoveries shall be made, in accordance with the provisions of said section 6 and the notifications of all amounts which would have been collected thereunder as such aforesaid tax if this section had been inforce at all material times.

(2) Notwithstanding anything contained in sub-section (1)-

(a) where any sale of goods taxable at the rates specified in the notification No. EXN-F(11)-1/91, dated 2nd May, 1991, referred to in clause (a) of sub-section (1) of this section, has been affected during the period between the 1st day of April, 1991 and the 3rd day of May, 1991;

(b) where any purchase of resin taxable at the rule of 8 paise in a rupee specified in the notification No. EXN-F(11)-1/91, dated 13th June, 1991, referred in clause (a) of sub-section (1) of this section, has been affected during the period between the 1st day of April, 1991 and the 15th day of June, 1991;

(e) where any sale of goods taxable at the rates specified in the notification No. EXN-F(11)-1/91, dated 13th June, 1991, referred to in clause (b) of sub-section (1) of this section, has been affected between the 1st day of April, 1991 and the 15th day of June, 1991;

the dealer affecting such sale or affecting purchase of resin shall pay the tax on the taxable turnover at the basic rates enhanced by 10% of the respective rates prescribed prior to the 1st day of April, 1991 for various classes of goods and for goods manufactured by small scale industrial units.

(3) For the removal of doubt? it is hereby declared that-

(a) nothing in the sub-section (2) shall be construed as preventing any person-

(i) from questioning in accordance with the provisions referred to in this section the assessment, re-assessment, levy or collection of the aforesaid tax; or

(ii) from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under any such provision; and.

(b) no act or omission on the part of any person, before the commencement of this Act, shall be punishable as an offence which would not have been so punishable if this Act had not come into force.