Amendment status not verified — confirm the current text below against the official source.
(1) Where a dealer required to furnish return for a period under sub-section (1) of section 32,— (a) fails to furnish such return; or (b) furnishes such return but fails to make an application to the Commissioner for extension of date of payment, of the unpaid amount of net tax and interest if any, as referred to in the first,,proviso to sub-section (2) of section 32; or (c) furnishes such return but fails to make payment of net tax or interest thereon in accordance with the terms and conditions and within such time as may be specified by the Commissioner as referred to in the first proviso to sub-section (2) of section 32; or (d) furnishes such return but fails to make payment of the unpaid amount of net tax or interest and where the Commissioner has rejected his application for extension of date of payment as referred to in the first proviso to sub-section (2) of section 32, the Commissioner or any other person appointed under sub-section (1) of section 6 to assist him, may, notwithstanding anything contained in section 46, proceed to assess the dealer provisionally for that period: Provided that no provisional assessment under this section in respect of a return period shall be made following the expiry of six months from, the prescribed date for furnishing such return or the extended date for making payment of net tax, as the case may be: Provided further that in computing the time limit as specified in the first proviso for making any provisional assessment under this section, the period during which the Commissioner is restrained from commencing or continuing any proceedings from such provisional assessment by an order of a tribunal or any court, shall be excluded. "Provisional assessment. PART III] THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 41 The West Bengal Finance Act, 2005. (Section 9.) (2) The Commissioner or other authority as referred to in sub- section (1), shall assess the dealer on the basis of past returns, or past records, and where no such returns or records are available, on the basis of information received by the Commissioner and where the dealer fails to pay the net tax for any tax period within the date extended by the Commissioner, shall impose a penalty not exceeding twice the amount of tax so assessed and direct the dealer by a notice to pay the amount of tax assessed, interest determined and penalty imposed in such manner and within such date as may be prescribed. (3) Notwithstanding anything contained elsewhere in this section, if the dealer produces documentary evidence for furnishing return and receipted copy of challan showing full payment of net tax and interest, if any, on or before the date fixed under sub-section (2) for such purpose, the said authority shall close the proceeding initiated under this section. (4) If the dealer furnishes receipted challans showing full payment of net tax and interest payable according to such demand notice and fifty per centwn of penalty demanded in such notice served under sub- section (2), on or before the date of payment mentioned in such notice, the provisional assessment shall stand revoked to the extent of demand of net tax, interest and balance fifty per centum of penalty. (5) Nothing contained in this section shall prevent the Commissioner from making assessment under section 46 and any net tax or interest paid, and penalty paid in excess of the fifty per centwn of the amount of penalty imposed against provisional assessment or assessments, as the case may be, shall be adjusted against net tax and interest payable on assessment made under that section."; (32) for section 46, the following section shall be substituted:— after giving "Assessment 46. (1) Where— notice to the registered dealer. (a) no return has been furnished by a registered dealer for any return period of a year; or (aa) return has been furnished by a registered dealer without paying net tax or interest for any of the tax period within the prescribed date, or within such date, as may be extended by the Commissioner; or (b) a registered dealer fails to make payment of the amount of net tax or interest, in deficit within the date specified in a notice issued under sub-section (2) of section 41; or (c) upon verification of return under sub-section (1) of section 42, or upon any enquiry, or upon report received under section 43, or otherwise, the Commissioner is not satisfied that the return furnished by a registered dealer is correct and complete; or (d) upon search or seizure of accounts, registers or documents, or of goods of a registered dealer, the Commissioner has reasons to believe that the registered dealer has not accounted for any turnover of sales or turnover of purchases in the return furnished by such dealer or in the accounts, registers or documents referred to in section 63; or 42 THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 [PART III The West Bengal Finance Act, 2005. (Section 9.) (e) a refund has been made to a registered dealer under clause (a) of section 61; or (f) a registered dealer brings to the notice of the Commissioner, in writing, within six months from the end of any year that due to error in fact or in law, an amount of net tax or interest has been paid by him in excess of what was actually payable by him for any return period of that year and the Commissioner is satisfied on the grounds adduced by such registered dealer; or (g) a registered dealer other than a dealer enjoying deferment, exemption or remission of tax under clause (a), or clause (b), or clause (c) of sub-section (1) of section 118, as the case may be, brings to the notice of the Commissioner, in writing, within three months from the end of the following year that he wants refund of the excess amount of input tax credit or input tax rebate which has accumulated during that year and which has remained unadjusted at the end of the said following year; or (h) a registered dealer has closed his business; or (i) the Commissioner deems it fit and proper for any other reason, the Commissioner shall, after giving a notice to such dealer, proceed in such manner as may be prescribed to assess to the best of his judgement the amount of net tax payable by such dealer in respect of such year or in respect of any return period of such year, as he may deem fit and proper: Provided that where the assessment is initiated upon receipt of a report under section 43, the Commissioner shall arrive at an independent decision on the discrepancies, anomalies or evasion or any other matter recorded in such report: Provided further that no assessment shall be made under this section for the period for which an assessment made under sub-section (2) of section 45 has not been revoked under sub-section (3) of said section, and action has been taken under section 55, or appeal is pending under section 84 or application for revision is pending under section 87 in respect of such assessment: Provided also that if on appeal or revision, the provisional assessment order passed under section 45 is either annulled or set aside with a direction to make fresh assessment, no further action shall be taken under section 45 and assessment for that period shall be made afresh under this section and such assessment shall be completed within two years from the date of order made in appeal or revision. (2) While making an assessment under sub-section (1), the Commissioner may, if he is satisfied— (a) that the dealer has defaulted in furnishing any return as required under section 32 without any reasonable cause; or PART III] THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 43 The West Bengal Finance Act, 2005. (Section 9.) (b) the dealer has furnished such return but has failed to pay the full amount of net tax for any tax period within the prescribed date or within such date as extended by the Commissioner, direct that the dealer shall pay by way of penalty, in addition to the amount of tax so assessed, a sum not exceeding fifty per centwn of the amount so assessed. (3) The Commissioner shall— (a) in making the assessment under sub-section (1) and imposing the penalty under sub-section (2), give the dealer a reasonable opportunity of being heard; and (b) after making such assessment or imposing such penalty, issue to the dealer a notice directing him to pay the net tax payable, interest determined and penalty imposed upon such assessment in such manner as may be prescribed."; (33) for section 47, the following section shall be substituted:— "Assessment as 47. (1) Where the Commissioner does not per return. proceed to assess any registered dealer under sub-section (1) of section 46 for any year or any return period of such year and where the provisional assessment made against such dealer in respect of such year or return period has been revoked under sub-section (3) of section 45, the Commissioner shall accept the returns furnished by the dealer for such year or any return period of such year as correct and complete and assessment in respect of such year or such period shall be deemed to have been made by him. (2) Upon making of an assessment under sub-section (1), the Commissioner shall inform the dealer who is assessed under that sub- section in such manner and within such time as may be prescribed. (3) Where an assessment is deemed to have been made under sub- section (1) in respect of a registered dealer relating to any year or part of a year and where it appears to the Commissioner on information or otherwise that in a return furnished by such registered dealer under section 32 in respect of any period of such year or part of a year,— (a) certain sale price or part thereof, contractual transfer price or part thereof, has not been disclosed in such return, or has escaped levy of tax thereon at the appropriate rate, erroneously or otherwise, or (b) the deductions from the turnover of sales were claimed under sub-section (1) of section 16 in such return, erroneously or otherwise, in excess of what is admissible under sub- section (1) of that section, or the deductions so claimed in such return are not supported by evidence referred to in sub- section (1) of that section, or (c) excess amount of input tax credit or input tax rebate has been enjoyed by the dealer for that period, and no reverse credit for such excess amount has been made by such dealer, 44 THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 [PART III The West Bengal Finance Act, 2005. (Section 9.) which has resulted in reduction of the amount of net tax payable by such registered dealer or the State Government has suffered loss of revenue on any of the grounds referred to in clause (a), or clause (b), or clause (c), of this sub-section on account of such registered dealer in respect of such year or part of such year, the Commissioner shall, within a period of four years from the date of assessment deemed to have been made in accordance with the provisions of sub-section (1), after giving such registered dealer a reasonable opportunity of being heard, reopen such assessment by an order in writing in the prescribed manner for making a fresh assessment of tax under sub-section (1) of section 46: Provided that the fresh assessment under sub-section (1) of section 46 for such year shall be made, notwithstanding the provisions of section 49, on any date within two years from the date of passing the order in writing for reopening the assessment in respect of such year, which is deemed to have been made in accordance with the provisions of sub-section (1) of this section. (4) Where a registered dealer brings to the notice of the Commissioner by making an application to him within six months from the date of assessment deemed to have been made in accordance with the provisions of sub-section (1) in respect of any year that due to his error in fact or in law, an amount of net tax or interest has been paid by him in excess of what was payable in respect of any return period falling within such year, and the Commissioner may, if he is prima facie satisfied about such error in fact or in law, within one year from the date of receipt of such application, reopen such assessment, by an order in writing, for making a fresh assessment of tax for such year under sub-section (1) of section 46."; (34) for section 48, the following section shall be substituted:— "Assessment of 48. (1) If upon information which has come into his tax payable by dealers other possession, the Commissioner is satisfied that any dealer, than registered dealer. who'has been liable to pay tax under this Act in respect of any period but has failed to get himself registered or has not been registered, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgement the amount of net tax payable by the dealer in respect of such period and, in making such assessment, shall give the dealer a reasonable opportunity of being heard and after making such assessment, the Commissioner shall issue to the dealer a notice in the prescribed form directing him to pay the amount of net tax found to be payable upon such assessment in such manner as may be prescribed. (2) Where— (a) the Commissioner upon verification as referred to in sub- section (5) of section 44A is not satisfied that the statement and documents submitted under section 30F by a casual dealer provide correct and complete information, or PART III] THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 45 The West Bengal Finance Act, 2005. (Section 9.) (b) the casual dealer has failed to submit the statement and documents referred to in section 30F within the time specified therein, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgement, the amount of tax due from such casual dealer in respect of purchases or sales made by him and in making such assessment, shall give the casual dealer a reasonable opportunity of being heard and after making such assessment, the Commissioner shall issue to the casual dealer a notice in the prescribed form directing him to pay the amount of tax found to be due upon such assessment in such manner as may be prescribed."; (35) for section 49, the following section shall be substituted:— "Limitation for 49. (1) No assessment under section 46 or assessment. section 47 shall be made after the 30th day of June next following the expiry of two years from the end of the year in respect of which or part of which the assessment is made. (2) (a) No assessment under sub-section (1) of section 48 shall be made after the 30th day of June next following the expiry of six years from the end of the year in respect of which or part of which the assessment is made. (b) No assessment under sub-section (2) of section 48 shall be made after the 30th day of June next following the expiry of six years from the end of the year during which sales or purchases as referred to in clause (a) and clause (b) of section 15 were made for which the assessment is required to be made. (3) Notwithstanding anything contained in sub-section (1), or sub- section (2), when a fresh assessment is required to be made in pursuance of an order under section 84, section 85, section 86 or section 87, or in pursuance of any order of the Tribunal or any court, such fresh assessment may be made at any time within two years from the date of such order. (4) In computing the time limited by sub-section (1), sub-section (2), or sub-section (3), for making any assessment under section 46, or section 47, or section 48, the period during which the Commissioner is restrained from commencing or continuing any proceedings from such assessment by an order of an authority under the Act, or a Tribunal or any court shall be excluded."; (36) in section 50,— (a) in sub-section (1), for the words and figures "under section 33 or section 34,", the words, figures and letter "section 33, section 34 or section 34A," shall be substituted; (b) in sub-section (3), for the words and figures "assessment under section 46", the words and figures "assessment under section 46 or section 48, as the case may be," shall be substituted; (37) in section 51, in sub-section (1), for the words "within six months", the words "within twenty-four months" shall be substituted; 46 THE KOLKATA GAZETTE, EXTRAORDINARY, MARCH 31, 2005 [PART III The West Bengal Finance Act, 2005. (Section 9.) (38) for section 53, the following section shall be substituted:- "Assessment after partition or disruption or dissolution of Hindu Undivided Family, firm,or other association of persons and net tax, penalty or interest payable by a sole proprietor.