Section 23A

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Appellate Authority The State Government may, by order, *appoint any officer not below Deputy Commissioner of Commercial Tax as Appellate Authority. 2 4 Appellate Board - (1) The State Government shall, by *notification with effect from a date specified therein, constitute Appellate Board to exercise the powers and perform the functions conferred on the Appellate Board by or under this Act. (2) Till the date specified in the notification under sub-section (1), the 2Appellate Board constituted under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995) 2 shall act as Appellate Board for the purpose of this Act and on the date aforementioned all proceedings pending before the 2Appellate Board constituted under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995) 2,Madhya Pradesh, acting as Appellate Board shall stand transferred to the Appellate Board constituted under sub-section (1). (3) The Appellate Board shall consist of a Chairman and such number of judicial and accountant members as the State Government may decide. [from 10.8.10] [The Appellate Board shall consist of a Chairman and 2such number of members as the State Government may decide2 who have vast knowledge of administration or taxation matter.] [upto 9.8.10] (4) The Appellate Board shall, for the purpose of discharging its functions, have all the powers which are vested in the commercial tax authorities referred to in section 3, and any proceedings before the Appellate Board shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code 1860 (No. 45 of 1860) and for the purpose of section 196 of the Indian Penal Code, 1860. The Appellate Board shall also be deemed to be the civil court for all the purposes of section 195 and chapter XXXV of the Code of Criminal Procedure 1973 (No. 2 of 1974). (5) 2The tenure of the Chairman and members shall be five years, but shall not be beyond the age of 65 years in case of Chairman and 62 years in case of members, and the salary and other conditions of service of the Chairman and members shall be such as may be prescribed : 2 14 [Provided that the Chairmen and the members shall hold office during the pleasure of the State Government]. [omitted from 10.8.10] (6) The Chairman of the Board shall be a retired member of the Indian Administrative Service who has held a post equivalent to the Chief Secretary of the State Government or Secretary to the Government of India and has experience of tax administration. (7) Judicial members shall be the person who has been a member of Madhya Pradesh Higher Judicial Service or a person who has been an advocate dealt in tax matters for at least ten years. At least one judicial member shall be a serving or retired member of Madhya Pradesh Higher Judicial Service. (8) Accountant members shall be the person who has been in practice of accountancy in Sales Tax / Commercial Tax / Value Added Tax, as a Chartered Accountant for at least ten years, or who has been a member of the Madhya Pradesh State Taxation Service and has held the post of Additional Commissioner or equivalent or a higher post for at least three years. At least one accountant member shall be a serving or retired member of Madhya Pradesh State Taxation Service. (9) The State Government may remove from office, the Chairman or a Member of the Board who- (a) has been adjudged an insolvent, or (b) has been convicted of an offence which in the opinion of the State Government, involves moral turpitude, or (c) has become physically or mentally incapable of acting as such Member, or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member, or (e) has so abused his position as to render his continuance in office prejudicial to the public interest; Provided that the Chairman shall not be removed from his office on the ground specified in clause (d) and (e) above except on an enquiry held by State Government in accordance with such procedure as it may prescribe in this behalf and finds the chairman to be guilty of such ground. Provided further that any member of the Board may be removed from the office, only after the consultation with the Chairman. (10) The terms and conditions of the service of the Chairman and the Members of the Board shall not be varied to their disadvantage during their tenure of office. (11) The Chairman or any Member ceasing to hold office shall not be eligible to appear, act or plead before any authority appointed under the Act. (12) Subject to the previous approval of the State Government, the Appellate Board may, from time to time make regulation consistent with the provisions of this Act to regulate the procedure in all matters arising out of the exercise of its powers or the discharge of its functions under the Act. 4-A. Orders of Appellate Board. (1) The Appellate Board may after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit (2) The Appellate Board may, at any time within four calendar years from the date of order, with a view to rectify any mistake apparent from the record, rectify any order passed by it under sub-section (1), and may make such rectification if the mistake is brought to its notice by the dealer or the Assessing officer: Provided that no such rectification shall be made if it has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of a dealer, unless the Appellate Board has given notice to the dealer of its intention to do so and has allowed the dealer a reasonable opportunity of being heard: 15 (3) On an application under sub-section (6) of section 46, the Appellate Board may, after considering the merits of the application made by the dealer, pass an order of stay for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Board shall dispose of the appeal within the said period of stay specified in that order ; Provided that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Board may, on an application made in this behalf by the dealer and on being satisfied that the delay in disposing of the appeal is not attributable to the dealer, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Board shall dispose of the appeal within the period or periods of stay so extended or allowed : Provided further that if such appeal is not disposed of within the period allowed under this sub-section or the period or periods extended or allowed under the first proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of appeal is not attributable to the dealer. (4) The cost, if any, in an appeal shall be at the discretion of the Appellate Board. (5) The Appellate Board shall send a copy of any orders passed under this section to the dealer and to the Commissioner. 4-B. Procedure of Appellate Board (1) The powers and functions of the Appellate Board may be exercised and discharged by Benches constituted by the Chairman of the Appellate Board from among the members thereof. (2) Subject to the provisions contained in sub-section (3), a Division Bench shall include at least one judicial member and one accountant member. (3) The Chairman or any other member of the Appellate Board may, sitting singly, dispose of any case which pertains to a dealer whose total turnover as computed by the Assessing Officer in the case does not exceed rupees sixty lacs and the Chairman may, for the disposal of any particular case, constitute a Special Bench consisting of three or more members, one of whom shall necessarily be a judicial member and one an accountant member. (4) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the Chairman of the Appellate Board for hearing on such point or points by one or more of the other members of the Appellate Board, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Board who have heard the case, including those who first heard it. (5) Subject to provisions of this Act, the Appellate Board shall have power to regulate its own procedure and the procedures of Benches thereof on all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings. 16 (6) The Appellate Board shall, for the purpose of discharging its functions, have all the powers which are vested in the commercial tax authorities referred to in section 3, and any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal code, 1860 (45 of 1860) and for the purpose of section 196 of the Indian Penal code, 1860 (45 of 1860), the Appellate Board shall be deemed to be a civil court for all the purposes of section 195 and Chapter 35 of the Code of Criminal Procedure, 1973 (No. 2 of 1974). [from 10.8.10] CHAPTER - III Incidence of tax 5 : Incidence of tax. (1) Every dealer whose turnover during a period of twelve months immediately preceding the commencement of this Act exceeds the prescribed limits, which shall not exceed rupees five lacs, shall from such commencement be liable to pay tax under this Act in respect of sales or supplies of goods effected by him in Madhya Pradesh. Different limits may be prescribed for different category of dealers. (2) Every dealer to whom sub-section (1) does not apply shall be liable to pay tax under this Act in respect of sales or supplies of goods effected by him in Madhya Pradesh with effect from the date on which his turnover in a year first exceeds the limit prescribed under the said sub-section but for the purpose of assessment of the tax for that year, only so much of his turnover as is in excess of such limit, shall be taken into consideration. 6 : Determination of liability to pay tax (1) The Commissioner shall, in the prescribed manner, institute proceedings for the purpose of determining the liability of a dealer to pay tax under this Act. Such liability shall be determined by an order and such determination shall be made within a period of twelve months from the date of institution of such proceedings. (2) Notwithstanding anything contained in sub-section (2) of Section 5, liability of a dealer to pay tax under this Act shall not be determined from a date earlier than five years prior to - (i)the date of institution of proceedings under sub-section (1); or (ii) the date of validity of the registration certificate, whichever is earlier. 7 : Joint and several liability of certain class of dealers. (1) (a) Where a dealer who carries on the business of supplying goods in the course of execution of a works contract entered into by him (hereinafter referred to as a contractor) through another such dealer (hereinafter referred to as a sub-contractor) directly or otherwise, and the sub-contractor executes such works contract and each or either of them is liable to pay tax under this Act, then notwithstanding anything contained in this Act, the contractor and the sub-contractor shall be jointly and severally liable to pay tax in respect of transfer of property in goods whether as goods or in some other form involved in the execution of such works contract. (b) If the contractor proves in the prescribed manner to the satisfaction of the Commissioner that the tax has been paid by the sub-contractor on the turnover of the goods supplied in the course of execution of the works contract, the contractor shall not be liable to pay tax again on the turnover of such goods. 6 (c) If the sub-contractor proves in the prescribed manner to the satisfaction of the Commissioner that the contractor has opted for composition under section 11-A in respect of the works contract being executed by the sub-contractor, the sub-contractor shall not be liable to pay tax on the turnover of the goods supplied in the execution of the works contract. 6 (2) 2Omitted2 17 (3) Where any dealer or person with a view to evade payment of tax or in order to claim any input tax rebate which he otherwise is not eligible for or was carrying on business in the name of or in association with any other person either directly or indirectly, whether as an agent, employee, manager, partner or power of attorney holder, guarantor, relative or sister concern or any other capacity, such person and the dealer in whose name the registration certificate was obtained shall jointly and severally be liable for the payment of tax assessed, reassessed, interest payable and penalty imposed under the Act and such tax, interest and penalty shall be recovered from all or any of such persons as if such person or persons are dealer under the Act. 8 : Liability of a dealer registered under Central Act No. 74 of 1956 to pay tax (1) A dealer registered under the Central Sales Tax Act, 1956 (No.74 of 1956) who is not liable to pay tax under Section 5 shall nevertheless be liable to pay tax at the rate specified in section 9 on his sales of any goods in respect of the purchases of which he has furnished a declaration under sub-section (4) of Section 8 of the said Act or on the sales of any goods in the manufacture of which such goods have been used, (2) Every dealer to whom sub-section (1) applies shall for the purposes of Section 18, 20, 24 and 39 be deemed to be a registered dealer. CHAPTER - IV Levy of tax 9 : Levy of tax 6 (1) 2There shall be levied on goods specified in Schedule II, a tax at the rate mentioned in the corresponding entry in column (3) thereof and such tax shall be levied on the taxable turnover of a dealer liable to pay tax under this Act.2 (2) Notwithstanding anything to the contrary contained in this Act, no tax shall be levied on goods specified in Schedule II, if the goods are sold by any one of the oil companies, as may be notified, to any one of the notified oil companies. [from 10.8.10] 6 [Notwithstanding anything contained in this Act, no tax shall be levied on goods specified in Schedule II, if the goods are sold by any one of the public sector oil companies, that is Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited, Bharat Petroleum Corporation Limited and Indo-Burma Petroleum Company Limited, to any one of the said oil companies.] 6 [upto 9.8.10] (3) Notwithstanding anything to the contrary contained in this Act, no tax shall be levied on such goods as may be notified by the State Government, subject to such restrictions and conditions as may be specified in the notification, if the goods are sold by a joint venture company to its holding company. [from 10.8.10] 209-A : Levy of tax by weight, volume, measurement or unit on certain goods . Notwithstanding anything contained in section 9, the State Government may, by notification, fix the amount of tax payable on the sale or purchase of certain goods or a class of goods in respect of a specified area or whole of the State, on the basis of weight, volume, measurement or unit, and subject to such terms and conditions as may be notified.20 10 : Levy of Purchase tax 2(1) Every dealer who in the course of his business purchases any goods specified in Schedule II from any person other than a registered dealer or from a registered dealer who has opted for 20 18 composition of tax under section 11 20or from a registered dealer in the circumstances in which no tax under Section 9 is payable by the registered dealer on the sale price of such goods20, shall be liable to pay tax on the purchase price of such goods if after their purchase, - (a) the goods other than those specified in part III of the said Schedule, are not sold within the State of Madhya Pradesh or in the course of inter-state trade or commerce or in the course of export out of the territory of India but are sold or disposed of otherwise; or 3/4 (b) the goods other than those specified in part III of the said Schedule, are consumed or used,- (i) in the manufacture or processing of goods declared tax free under section 16 and the manufactured or processed goods are disposed of otherwise than by way of sale in the course of export out of the territory of India; or (ii) as plant, machinery, equipment and parts thereof in generation, transmission or distribution of electrical energy ; or3/4 (c) the goods other than those specified in part III of the said Schedule, after consumption or use in the manufacture or processing or mining of any goods specified in Schedule II, the manufactured or processed or mined goods are disposed off otherwise than by way of sale within the State of Madhya Pradesh or in the course of inter-state trade or commerce or in the course of export out of the territory of India ; or (d) the goods specified in part III of the said Schedule, are not sold within the State of Madhya Pradesh or in the course of inter-state trade or commerce or in the course of export out of the territory of India but are sold or disposed of otherwise; or (e) the goods specified in part III of the said Schedule, are consumed or used in the manufacture or processing or mining of goods ; and such tax shall be levied, - (i) in respect of goods referred to in clauses (a), (b) and (c), at the rate of 4 percent or the rate specified in column (3) of Schedule II, whichever is lower; and (ii) in respect of goods referred to in clauses (d) and (e),at the rate specified in column (3) of Schedule II. Explanation - The rate specified in Schedule II shall be the rate at which tax would have been levied on the sales of such goods within the State of Madhya Pradesh on the date of such purchase. 2 (2) No tax under this section shall be levied in respect of any year on - (a) a dealer whose turnover in a year does not exceed the limit prescribed under sub- section (1) of section 5, (b) any other dealer who has no turnover, if his aggregate of purchase prices of all the goods does not exceed such amount as may be prescribed. (3) Every dealer who has no turnover and is liable to pay tax under sub-section (1) shall, for the purpose of Sections 18,20,21, 24,25 and 39, be deemed to be a registered dealer