THE
MAHARASHTRA STATE
TAX ON PROFESSIONS, TRADES, CALLINGS AND EMPLOYMENTS ACTS,
1975
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Short title,
extent and commencement:—
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This Act
maybe called the Maharashtra State Tax on Professions, Trades, Callings and
Employments Act, 1975.
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It
extends to the whole of the State of Maharashtra.
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It
shall be deemed to have come into force on the 1st day of April 1975.
2. Definitions.—In
this Act, unless the context otherwise requires,--
(a)
"Commissioner" means the Commissioner of Profession Tax appointed under section
12, and includes an Additional Commissioner of Profession Tax (if any) appointed
under that section;
(b)
"Corporation area" means an area within the limits of a municipal corporation
constituted under the Bombay Municipal Corporation Act, the Bombay Provincial
Municipal Corporations Act, 1949 or the City of Nagpur Corporation Act, 1958;
(ba)
"Employee" means a person employed on salary or wages,
and
includes--
(i) A
Government servant receiving pay from the revenues of the Central Government or
any State Government or the Railway Fund.
(ii) a
person in the service of a body, whether incorporated or not, which is owned or
controlled by the Central Government or any State Government, where the body
operates in any part of the State, even though its headquarters may be outside
the State;
(iii) A
person engaged in any employment of an employer, not covered by items (i) and
(ii) above;
(c)
"employer" in relation to an employee earning any salary or wages on regular
basis under him, means the person or the officer who is responsible for
disbursement of such salary or wages and includes the head of the office of any
establishment as well as the manager or agent of the employer;
(ca)
"engaged", in relation to any profession, trade, calling or employment means
occupied fully or otherwise in such profession, trade, calling or employment,
whether any pecuniary benefit or benefit of any nature whatsoever, actually
accrues or not to a person from such occupation.
(d)
"month" means a month reckoned according to the British calendar;
(e) "person"
means any
person
who is
engaged actively or otherwise in any profession, trade, calling or employment in
the State of Maharashtra, and includes a Hindu undivided family, firm, company
corporation or other
corporate body, any society, club or association, so
engaged, but does not include any person who earns wages on a casual basis;
(f)
“Prescribed” means prescribed by the rules made under this Act;
(g)
“Profession tax” or “tax” means the tax on professions, trades, callings and
employments levied under this Act;
(h)
"salary" or "wage" includes pay or wages, dearness allowance and all other
remunerations received by any person on regular basis, whether payable in cash
or kind, and also includes perquisites and profits in lieu of salary, as defined
in section 17 of the Income-tax Act, 1961, but does not include bonus in any
form, and on any account or gratuity;
(i)
"Schedule" means a Schedule appended to this Act;
(j)
"Tribunal" means the Maharashtra Sales Tax
Tribunal
constituted
under section 21 of the Bombay Sales Tax Act, 1959, and discharging the
functions of the Tribunal assigned to it by or under this Act;
(k)
"year" means the financial year.
3. Levy and charge of tax.—(1)
Subject to the provisions of article 276 of the Constitution of India and of
this Act, there shall be levied and collected a tax on professions, trades,
callings and employments for the benefit of the State.
(2) Every
person excluding firms (whether registered under the Indian Partnership Act,
1932, or not) and Hindu undivided family engaged actively
or otherwise in any profession, trade, calling or employment and falling under
one or the other of classes mentioned in the second column of Schedule I shall
be liable to pay to the State Government the tax at the rate mentioned against
the class of such persons in the third column of the said Schedule:
Provided
that, the tax so payable in respect of any one person shall not exceed two
thousand and five hundred rupees in any year:
Provided
further that, entry 23 in Schedule I shall apply only to such classes of persons
as may be specified by the State Government by notification in the Official
Gazette, from time to time.
4. Employer's liability to deduct and pay
tax on behalf of employees.—The
tax payable under this Act, by any person earning a salary or wage, shall be
deducted by his employer from the salary or wage payable to such person, before
such salary or wage is paid to him, and such employer shall, irrespective of
whether such deduction has been made or not, when the salary or wage is paid to
such persons, be liable to pay tax on behalf of all such persons:
Provided
that, if the employer is an officer of Government the State Government may,
notwithstanding anything contained in this. Act; prescribe by rules the manner
in which such employer shall discharge the said liability:
Provided
further that, where any person earning a salary or wage -
(a) is
also covered by one or more entries other than entry 1 in Schedule I and the
rate of tax under any such other entry is more than the rate of tax under entry
1 in that Schedule, or
(b) is
simultaneously engaged in employment of more than one employer, and such person
furnishes to his employer or employers a certificate in the prescribed form
declaring inter alia, that he Shall get enrolled under sub-section (2) of
section 5 and pay the tax himself, than the employer or employers of such person
shall not deduct the tax from the salary or wage payable to such person and such
employer or employers, as the case may be, shall not be liable to pay tax on
behalf of such person.
5. Registration and enrolment.—
(1)
Every employer (not being an officer of Government liable to pay tax under
section 4, or under sub-section (5) of section 10A shall obtain a certificate of
registration from the prescribed authority in the prescribed manner.
(2) Every
person liable to pay tax under this Act (other than a person earning salary or
wages, in respect of whom the tax is payable by his employer), shall obtain a
certificate of enrolment from the prescribed authority in the prescribed manner.
(2A)
Notwithstanding anything contained in this section and the last preceding
section, where a person is a citizen of India and is in employment of any
diplomatic or consular office or trade commissioner of any foreign country
situated in any part of the State, such person, if liable to pay tax, shall
obtain a certificate of enrolment as provided in sub-section (2) and pay the tax
himself.
(3) Every
employer or person required to obtain a certificate of
registration or enrolment
shall, within thirty days from the date of first publication of this Act in the
Official Gazette, or, if he was not engaged in any profession, trade,
calling or employment on that date within thirty days of his becoming liable to
pay tax, or, in respect of a person referred to in sub-section (2) or (2A),
within thirty days of his becoming liable to pay tax at a rate higher or lower
than the one mentioned in his certificate of enrolment, apply for a certificate
of registration or enrolment, or a revised certificate of enrolment, as the case
may be, to the prescribed authority in the prescribed form, and the prescribed
authority shall, after making such inquiry as may be necessary within thirty
days of the receipt of the application (which period in the first year from the
commencement of thiss
Act
shall be extended to ninety days), if the application is in order grant him such
certificate.
Provided
that, where on account of revision of rate of tax the person liable to pay tax
is required to pay tax at a rate higher or lower than the one mentioned in the
certificate of enrolment, the rate of tax mentioned in such certificate shall be
deemed to have been revised accordingly on the date of such revision of rate of
tax as aforesaid; and pending such person applying for a revised certificate of
enrolment and grant of such certificate to him, such person shall,
notwithstanding anything contained in this Act, be liable to pay tax at such
revised rate.
(4) The
prescribed authority shall mention in every certificate of enrolment the amount
of tax payable by the holder according to Schedule I, and the date by which it
shall be paid, and such certificate shall, subject to the provisions of the
proviso to sub-section (3), serve as a notice of demand for purposes of section
10.
(5) Where an
employer or a person liable to registration or enrolment has failed to apply for
such certificate within the required time, the prescribed authority may, after
giving him a reasonable " opportunity of being heard, impose penalty of
rupees five for each day of delay in case of such employer and rupees two for
each day of delay in case of such person.
(6)
Where
an employer or a person liable to registration or enrolment has given false
information in any application submitted under this section, the prescribed
authority may, after giving him a reasonable opportunity of being heard, impose
a penalty equal to three times the tax payable under the Act.
6. Returns.—
(1)
Every employer registered under this Act shall furnish to the prescribed
authority ,a return in such form, for such periods and by such dates as may be
prescribed, showing therein the salaries and wages paid by him and the amount of
tax deducted by him in respect thereof --
(2) Every
such return shall be accompanied by a treasury
challan
in proof of
payment of full amount of tax due according to the return, and a return without
such proof of payment shall not be deemed to have been duly filed.
(3) Where an
employer has without reasonable cause failed to file such return within the
required time, the prescribed authority may, after giving him a reasonable
opportunity of being heard, impose upon him a penalty of rupees three hundred
per return.
7. Assessment and collection of tax.—
(1)
the amount of tax due from an employer liable to pay tax shall be assessed
separately for each year:
Provided
that, the Commissioner may, subject to such conditions as may be prescribed and
for reasons to be recorded in writing, assess the tax due from any employer for
a part of a year:
Provided
further that, when an employer has failed to furnish, by the prescribed date,
any return relating to any period of any year, the Commissioner may, if he
thinks fit, assess the tax due from such employer separately for different parts
of such year.
(2)
(2) The Commissioner on being satisfied that, the returns furnished by an
employer in respect of any period are correct and complete, he shall assess the
amount of tax due from the employer on the basis of such returns:
Provided
that, the commissioner on not being satisfied that the returns furnished by the
employer in respect of any period are correct and complete, and he is of the
opinion that it is necessary to require the presence of the employer or the
production of further evidence in that respect, he shall serve on such employer,
in the prescribed manner, a notice requiring such employer on a date and at a
place specified in the notice, either to attend and produce or cause to be
produced all the evidence on which such employer has relied in support of his
returns, or to produce such evidence as is specified in the notice. On the date
specified in the notice, or as soon as may be thereafter, the Commissioner
shall, after considering all the evidence produced, assess the amount of tax due
from the employer.
Provided
further that, if the employer fails to comply with any of the directions or
requirements specified in the notice issued under the above proviso, the
Commissioner may, assess the amount of tax due from the employer on the basis of
the record available before him.
(3) Where all
the returns are filed by the employer for any year starting on or after the 1st
April 2004 within one month from the end of the year to which such returns
relate, no order of assessment under the provisos to sub-section (2) in respect
of that year shall be made after the expiry of three years from the end of the
said year; and if for any reason such order is not made within the period
aforesaid, then the returns so filed shall be deemed to have been accepted as
correct and complete for assessing the tax due from such employer;
Provided
that, in case of returns pertaining to the years on or before the 31st
March 2004, and filed on or before the 30th September 2004, no order
of assessment shall be made under the provisos to sub-section (2) on or after
the 1st April 2007.
Provided
that, where a fresh assessment has to be made to give effect to any finding or
direction contained in any order made under this Act, or to any order of the
Tribunal or Court, such assessment shall be made within thirty-six months from
the date of communication to the Commissioner of such finding, direction or
order, as the case may be.
Provided also
that, in computing the period specified in the second proviso, the time during
which the assessment remained stayed by or under the order of the Tribunal or
Court, shall stand excluded.
(4)
Notwithstanding anything contained in this section or any other provisions of
this Act, where the assessment involves a decision on a point which is concluded
against the State by the judgment of the Tribunal and the State Government or
the Commissioner has initiated any proceedings against such judgment before an
appropriate forum, in such a case, the Commissioner may complete the assessment
as if the point was not so decided by the Tribunal against the State, but shall
stay the recovery of such dues
including interest and penalty, if any, in so far as they relate to such point,
until the decision by the appropriate forum and after such decision, modify the
assessment order, in accordance with such decision.
(5) In any
case where it comes to the notice of the Commissioner that, any employer has not
furnished returns in respect of any period by the prescribed date, the
Commissioner may, at any time, before the expiry of the period of eight years
from the end of the year to which such period relates, after giving such
defaulting employer a reasonable opportunity of being heard in that matter,
assess, to the best of his judgment, the tax, if any, due from such employer.
(6) The
Commissioner on being satisfied that an employer liable to pay tax in respect of
any period, has failed to apply for registration within time as required by this
Act, the Commissioner shall, at any time, before the expiry of the period of
eight years from the end of the year to which such period relates, after giving
such defaulting employer, a reasonable opportunity of being heard, assess, to
the best of his judgment., the tax, if any, due from the employer in respect of
that period, and any period or periods subsequent thereto.
(7) The
amount of tax so assessed shall be paid within fifteen days of receipt of the
notice of demand from the prescribed authority.
8. Payment of Tax.—
(1)
the tax payable under this Act shall be paid in the prescribed manner.
(2) The
amount of tax due from enrolled persons for each year as specified in their
enrollment certificates shall be paid:—
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(a) in respect
of a person who stands enrolled before the commencement of a year or is
enrolled on or before the 31st May of a year
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Before 30th June
of that
year or such
later date as the Commissioner may by notification in the Official
Gazette, specify in respect of that year.
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(b) in respect
of a person who is enrolled after the 31 st May of a year
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Within one month of the
date of enrolment.
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(c) In respect
of a person who is enrolled and the rate of tax at which he is liable to pay
tax is revised.
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Within one month of the
date of such revision.
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(3) (a)
Subject to the rules, any person holding a certificate of enrollment and liable
to pay tax at the rate of rupees 1700, 2200
or as
the case may be, 2500
per annum, may discharge his liability for payment of tax under this Act for a
total continuous period of five years by making payment in advance of a lump sum
amount equal
to
four
times of such rate of tax on or before the 30th June of the year.
(b) If any
such lump sum payment is not made on or before Such date, but is made on or
before the end of the year, such person shall be liable to pay an additional
lump sum amount for the period of delay at the rate of rupees 200/- per month,
in addition to the amount of lump sum payable under
clause
(a).
(c) Any
increase or decrease in the rate of tax shall not vary the liability of tax
payable by such person who has paid such lump sum amount in lieu of tax.
9. Consequences of failure to deduct or
to pay tax:—
(1)
If an employer
(not
being an officer of Government) fails to pay the tax as required by or under
this Act, he shall without prejudice to any other consequences and liabilities
which he may incur, be deemed to be an assessee in default in respect of the
tax.
(2) Without
prejudice to the provisions of sub-section (1), an employer referred to in that
sub-section shall be liable to pay simple interest at one and a quarter per cent
of the amount of the tax payable for each month for the period, for which the
tax remains unpaid.
(2A) Where
the amount of tax as assessed under section 7 or as found payable in view of an
order passed under section 13 or 14 is more than the amount of tax paid by the
employer, then such employer shall be liable to pay simple interest on the
amount of difference of tax at the rate and in the manner laid down in
sub-section (2).
(3) If an
enrolled person fails to pay the tax as required by or under this Act. He shall
be liable to pay simple interest at the rate and in the manner laid down in
sub-section (2).
(4) The
Commissioner may, subject to such conditions and limitations as may be
prescribed and for reasons to be recorded in writing remit the whole or any part
of the interest payable in respect of any period under this section.
10. Penalty for
non-payment of tax:—
If an
enrolled person or a registered employer fails, without reasonable cause, to
make payment of any amount of tax, within the required time or date as specified
in the notice of demand, the prescribed authority may, after giving him a
reasonable opportunity of being heard, impose upon him a penalty equal to ten
per cent, of the amount of tax due.
10A. Special provision regarding
liability to pay tax in certain cases:—
(1) Where an
employer liable to pay tax under section 4 of this Act, dies then, his legal
representative shall be liable to pay tax (including any penalty and interest)
due from such employer under this Act, in the like manner and to the same extent
as the deceased employer, whether such tax (including any penalty and interest)
has
been assessed
before
the death of the employer but has remained unpaid, or is assessed after the
death of the employer.
Explanation.—In this sub-section, the expression "legal representative" has the
same meaning assigned to it in clause (11) of section 2 of the Code of Civil
Procedure, 1908.
(2) Where an
employer liable to pay tax under section 4 of this Act, is a Hindu undivided
family and the joint family property is partitioned amongst the various members
or group of the members then, each member or group of members shall be jointly
or severally liable to pay the tax (including any penalty and interest) due from
the employer under this Act upto the time of partition, whether such tax
(including any penalty and interest) has been assessed before the partition but
has remained unpaid, or is assessed after partition.
(3) Where an
employer liable to pay tax under this Act, is a firm and the firm is dissolved
then, every person who was a partner shall jointly or severally be liable to pay
the tax (including any penalty and interest), due from the employer firm under
this Act up to the time of dissolution, whether such tax (including any penalty
and interest) has been assessed before such dissolution but has remained unpaid,
or is assessed after such dissolution.
(4) Where an
employer, liable to pay tax under this Act, transfers or otherwise disposes of
his office or establishment or activity in whole or in part, or effects any
change in employment in consequence of which he is succeeded in the office or
establishment or activity or part thereof by an any other person then the
employer and the person succeeding shall jointly or severally be liable to pay
tax (including any penalty and interest) due from the employer under this Act
upto the time of such transfer disposal or change, whether such tax (including
any penalty and interest) has been assessed before such transfer, disposal or
change but has remained unpaid, or is assessed thereafter.
(5) Where an
employer liable to pay tax under this Act is succeeded in the office or
establishment for activity by any person in the manner described in sub-section
(4) then, such person shall—
(a)
notwithstanding anything contained in section 3, be liable to pay tax in respect
of the period from the date of such succession; and
(b)
within 30 days from the date of such succession, apply for certificate of
registration, unless he already holds a certificate of registration.
11. Recovery of tax, etc.:-
All arrears
of tax, penalty, interest and fees under this Act shall be recoverable as
arrears of land revenue.
11A.Special powers of Profession Tax
Authorities for recovery of tax as arrears of land revenue:--
(1)
For the purpose of effecting recovery of the amount of tax, interest and
penalty, due and recoverable from any person by or under the provisions of this
Act, as arrears of land revenue.
(i)
the Commissioner of Profession Tax shall have and exercise all the powers and
perform all the duties of the Commissioner under the Maharashtra Land Revenue
Code, 1966 (hereinafter in this section referred to as "the said Code");
(ii)
the Additional Commissioner of Profession Tax shall have and exercise all the
powers and perform all the
duties
of the Additional Commissioner under the said Code;
(iii)
the Deputy Commissioner of Profession Tax shall have and exercise all the powers
and perform all the duties of the Collector under the said Code;
(iv)
the Assistant Commissioner of Profession Tax shall have and exercise all the
powers (except the powers of arrest and confinement of defaulter in a civil
jail) and perform all the duties of the Assistant or Deputy Collector under the
said Code;
(v)
the Profession Tax Officer shall have and exercise all the powers (except the
powers of confirmation of sale and arrest and confinement of defaulter in a
civil jail) and perform all the duties of the Tahsildar under the said Code.
(2) Every
notice issued or order passed in exercise of the powers conferred by sub-section
(1) shall, for the purposes of sections 13, 14, 15 and 25 be deemed to be a
notice issued or an order passed under this Act.
12. Authorities for implementation of the
Act:—
(1)(a)
For carrying out the purposes of this Act, the State Government may appoint—
(i)
an officer
to
be the
Commissioner of Profession Tax for the whole of the State of Maharashtra;
(ii)
One or more officers to be the Additional Commissioner of Profession Tax as the
State Government thinks necessary;
(iii)
Such number of Deputy Commissioners of Profession Tax, 1 Senior Assistant
Commissioner of Profession Tax, Assistant Commissioners of Profession Tax and
Profession Tax Officers and other officers and persons (with such designation)
as the State Government thinks necessary.
(b) An
officer appointed under paragraph (ii) or (iii) or clause (a) above shall,
within the limits of such area as the State Government may specify, by
notification in the Official Gazette, to be within his jurisdiction,
exercise such powers and perform such duties as may be conferred or imposed upon
him by or under this Act.
(c) The
superintendence and control for the proper execution of the provisions of the
Act and the rules made there under relating to the levy and collection of the
tax shall vest in the Commissioner.
(2) The
Tribunal constituted under section 21 of the Bombay Sales Tax Act, 1959, shall
be the Tribunal for the purposes of hearing appeals and revision applications
and discharging other functions of the Tribunal under this Act, and accordingly,
the provisions of section 21 of that Act (including any regulations made
hereunder with such modifications, if any, therein as circumstances may require)
and other provisions relating to the Tribunal under that Act shall also apply to
and in relation to such Tribunal for the purposes of this Act.
(3) For
carrying out the purposes of this Act, the State Government may, at its
discretion, appoint any Government Department or officer, or a Municipal
Corporation, Municipal Council or Zillah
Parishad
or any
agency,
hereinafter called "the Collecting Agent" as its agent responsible for levy and
collection of the tax under
this
Act from such persons or class of persons as may be prescribed, and thereupon,
it shall be the duty of such Collecting agent to carry out in such manner as may
be prescribed, such functions under this Act as may be prescribed, and to render
full and complete account of the tax levied and collected to the Commissioner in
such manner and at such time as that officer may require.
(4) Any
person authorised by the Collecting Agent in this behalf shall have for the
purposes of levy and collection of the tax such powers as may be prescribed.
(5) A
Municipal Corporation, Municipal Council or Zillah
Parishad
or agency
appointed as agent to carry out the purposes of this Act under subsection (3)
shall be paid such collection charges as may be determined by the State
Government,
(6) It shall
be lawful for the Commissioner, or an Officer duly authorised by him, to have
access to, and to cause production and examination of books, registers, accounts
or documents maintained or required to be maintained by the Collecting Agent for
the purposes of this Act, and the Collecting Agent shall, whenever called upon
to do so, produce such books, registers, accounts or documents for inspection by
the Commissioner or by the authorised officer.
(7) For
carrying out the purposes of this Act, the Commissioner or an officer duly
authorised by him may, appoint any person or persons, possessing such
qualifications as may be prescribed, as his agent or agents (hereinafter
referred to as the "recovery agent"). Such recovery agent shall be responsible
for survey and recovery of the arrears of the tax (including interest and
penalty) recoverable under this Act.
(8) It shall
be the duty of the recovery agent to carry out such functions and in such
manner, as may be prescribed, and to render full and complete account of the
arrears recovered to the Commissioner or to the officer duly authorised by him,
in such manner, and at such time, as that officer may require.
(9) The
recovery agent shall have, for the purpose of survey and recovery of tax,
interest and penalty, such powers as may be prescribed.
(10) The
recovery agent shall be paid such incentive as may be determined by the
Government.
(11) It shall
be lawful for the Commissioner or an Officer duly authorised by him, to have
access to, and to cause production and examination of, books registers, accounts
or documents maintained or required to be maintained by the recovery agent for
the purpose of this Act, and the recovery agent shall, whenever called upon to
do so, produce such books, registers, accounts or documents for inspection by
the Commissioner or by the authorised officer.
12A. Determination of certain disputed
questions:—
(1)
If any question arises, otherwise than in proceedings before a Court or before
the prescribed authority has commenced assessment of an employer under section
7, about the interpretation or the scope of any expression defined in section 2,
or of any entry in Schedule I, the Commissioner shall make an order determining
such question.
Explanation.—for the purposes of this sub-section, the prescribed authority
shall be deemed to have commenced assessment of an employer under section 7,
when the employer is served with a notice under that section.
(2) The
Commissioner may direct that the determination shall not affect the liability of
any person under this Act, as respects the period prior to the determination.
(3) If any
such question arises from any order already passed under this Act, no such
question shall be entertained for determination under this section, but such
question may be raised in appeal against, or by way of revision of, such order.
13. Appeal:—
(1)
Subject to rules as may be made by the State Government, any person or employer
aggrieved by any order made under sections 5, 6, 7, 9, 10, 15 or 16 may appeal
against such order to,—
(a)
The Assistant Commissioner, if the order is passed by any prescribed authority
or officer subordinate to him;
(b)
The Deputy Commissioner, if the order is passed by the Assistant Commissioner;
and
(c)
The Tribunal, if the order is passed by any officer not below the rank of Deputy
Commissioner.
(2) No appeal
shall be entertained after the expiry of sixty days
from
the date of receipt of demand notice or receipt of the order:
Provided
that, the appellate authority may admit the appeal after the expiry of the above
period, if he is satisfied that there was sufficient cause for the delay.
(3) No
appeal against an order of assessment with or without penalty or interest, or
against an order imposing penalty or interest shall ordinarily be entertained by
an appellate authority, unless such appeal is accompanied by satisfactory proof
of the payment of tax with or without penalty or interest or, as the case may
be, of the payment of penalty or interest, in respect of which appeal has been
preferred:
Provided
that, an appellate authority may, if it thinks fit, for reason to be recorded in
writing, entertain an appeal against such order on payment of not less than
twenty-five per cent of the amount of tax, penalty or interest, in respect of
which appeal has been preferred, as it may direct.
(4) The
appellate authority in disposing of an appeal may—
(i)
confirm, annual, reduce, enhance, or otherwise modify the assessment or penalty
or interest, or
(ii)
Set aside the assessment or penalty or interest and direct
the
authority
which
made the assessment or imposed the penalty or charged the interest to pass a
fresh order after further inquiry on specified points.
(5) No
order under
this section
shall be passed without giving the appellant or his representative, and, where
the appellate authority is the Tribunal, without giving the authority whose
order or directions is the subject of the appeal or his representative, a
reasonable opportunity of being heard.
14. Revision:—
(1) Any order
passed in appeal under section 13 may, on an application being made in this
behalf, be revised by—
(a)
The Deputy Commissioner, if the order is passed by the Assistant Commissioner.
(b) The
Tribunal, if the order is passed by the Deputy Commissioner.
(2) Any order
passed by the Deputy Commissioner under sub Section (1) or by the Commissioner
under sub-section (4) of this section, or any order made by the Commissioner
under section 12A may, on an application being made to the Tribunal against such
order, be revised by the Tribunal.
(3) No
revision shall be entertained under sub-section (1) or (2) after the expiry of
sixty days from the date of the receipt of the order.
(4) The
Commissioner may, of his own motion, revise any order passed by any authority
other than the Tribunal under this Act:
Provided
that, no order shall be revised by the Commissioner under this sub-section after
the expiry of three years from the passing of the impugned order.
(5) No order
under this section shall be passed without giving the applicant or the assessee
a reasonable opportunity of being heard.
15. Rectification of mistakes:--
(1)
any authority under this Act may, of his own motion or on an application being
made in this behalf, rectify any mistake apparent on the face of the record.
(2) Any
authority under this Act, may review his own order, if any employer has been
under-assessed for any period:
Provided
that, if an order under this section has an adverse effect on an employer or a
person, no such order shall be passed unless a reasonable opportunity of being
heard has been given to such employer or person:
Provided
further that, no order under this section shall be passed after the expiry of
three years from the passing of the impugned order.
16. Accounts:—
(1)
If the Commissioner is satisfied that the books of account and other documents
maintained by an employer in the normal course of his
business are not adequate for verification of the returns filed by the employer
under this Act, it shall be lawful for the Commissioner to direct the employer
to maintain the books of account or other documents in such manner as he may in
writing direct, and thereupon the employer shall maintain such books of account
or other documents accordingly.
(2) Where an
employer willfully fails to maintain the books of accounts or other documents as
directed under sub-section (1), the Commissioner may, after giving him a
reasonable opportunity of being heard, impose a penalty not exceeding rupees
five for each day of delay.
17. Special mode of recovery:—
(1)
Notwithstanding anything contained in any law or contract to the contrary, the
Commissioner may, at any time, or from time to time, by notice in writing, a
copy of which shall be forwarded to the assessee at his last address known to
the Commissioner, require-
(a)
any person from whom any amount of money is due, or may become due, to an
assessee on whom notice of demand has been served under this Act, or
(b)
Any person who holds or may subsequently hold money for or on account of such
assessee,
to pay the
Commissioner, either forthwith upon the money becoming due or being held or at
or within the time specified in the notice (but not before the money becomes due
or is held as aforesaid), so much of the money as is sufficient to pay the
amount due by the assessee in respect of the arrears of tax, penalty and
interest 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 section, the amount of money due to an
assessee from, or money held for or on account of an assessee by, any person
shall be calculated after deducting there from such claims (if any) lawfully
subsisting, as may have fallen due for payment by such assessee to such person.
(2) The
Commissioner 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 under this section shall
be deemed to have made the payment under the authority of the assessee, and the
receipt of the Commissioner shall constitute a good and sufficient discharge of
the liability of such person, to the extent of the amount referred to in the
receipt.
(4) Any
person discharging any liability to the assessee after receipt of the notice
referred to in this section, shall be personally liable to the Commissioner to
the extent of the liability discharged, or the extent of the liability of the
assessee for tax, penalty and interest, whichever is less.
(5) Where a
person whom a notice under this section is sent proves to the satisfaction of
the Commissioner that the sum demanded or any part thereof is not due to the
assessee or that he does not hold any money for on account of the assessee, then
nothing contained in this section shall be deemed to require such person to pay
any such sum or part thereof, as the case may be, to the Commissioner.
(6) Any
amount of money which a person is required to pay to the Commissioner or for
which he is personally liable to the Commissioner under this section, shall if
it remains unpaid be recoverable as an arrear of land revenue.
18. Production and inspection of accounts
and documents and search of premises:—
Any authority
under this Act may inspect and search any premises, where any profession, trade,
calling or employment liable to taxation under this Act is carried on or is
suspected to be carried on and may cause production and examination of books,
register, accounts or documents relating thereto and may seize such books,
registers, accounts or documents as may be necessary:
Provided
that, if the said authority removes from the said premises any book, register,
account or document, he shall give to the person in charge of the places, a
receipt describing the book, register, account or document so removed by him and
retain the same only for so long as may be necessary for the purposes of
examination thereof or for a prosecution.
19.
Refunds of excess payments.—
The
prescribed authority shall refund to a person the amount of tax, penalty,
interest and fees (if any) paid by such person in excess of the amount due from
him. The refund may be made either by cash payment or, at the option of the
person, by deduction of such excess from the amount of tax, penalty, interest
and fee due in respect of any other period:
Provided
that, the prescribed authority shall first apply such excess towards the
recovery of any amount due in respect of which a notice
under
section 7 has been served, and shall then refund the balance, if any.
19A. Interest on amount of refund:—
Where, in
pursuance of any order under this Act, in respect of any period of assessment
commencing on or after the 1st April 2004, refund of any tax becomes due to an
employer or person he shall, subject to the rules, if any, be entitled to
receive, in addition to the refund, simple interest at the rate of six per cent
per annum for the period commencing on the date next following the last date of
the period of assessment to which such order relates and ending on the date of
such order or
for
a period of eighteen months, whichever is less. The interest shall be calculated
on the amount of refund due to the employer or any person in respect of the said
period after deducting there from the amount of penalty and interest, if any,
charged in respect of the said period and also the amount of refund, if any,
adjusted towards any recovery under this Act. If, as a result of any order
passed under this Act, the amount of such refund is enhanced or reduced, as the
case may be; such interest shall be enhanced or reduced accordingly.
Explanation –
For the purposes of this section, where the refund of tax, whether in full or in
part, includes any amount of refund on any payment of tax made after the date
prescribed for filing of the last return for the period of assessment, then the
interest, in so far as it relates to the refund arising from such payment, shall
be calculated from the date of such payment to the date of such order.
19B.Interest on delayed refund:
-
Where an
amount required to be refunded by the Commissioner to any employer or person by
virtue of an order issued under this Act is not so refunded to him within ninety
days from the date-of the order, the State Government shall, pay such employer
or person a simple interest at the rate of six per cent. Per annum on the said
amount from the date immediately following the expiry of the period of ninety
days from the date of such order:
Provided
that, where the amount becomes refundable by virtue of an order of the Tribunal,
the interest under the provisions of this section shall be payable from the date
immediately following the expiry of the period of ninety days from the date of
receipt of the order of the Tribunal by the officer whose order forms the
subject of the appeal or revision proceedings before the Tribunal.
20. Offences and penalties:—
Any person or
employer who, without sufficient cause, fails to comply with any of the
provisions of this Act or the rules framed hereunder shall, on conviction, be
punished with fine not exceeding five thousand rupees, and, when the offence is
a continuing one, with fine not exceeding fifty rupees per day during the period
of the continuance of the offence.
21. Offences by companies:—
(1) Where an
offence under this Act has been committed by accompany, every person who at the
time the offence was committed was in charge of and was responsible to the
company for the conduct of the business of the company as well as the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly:
Provided
that, nothing contained in this sub-section shall render any such person liable
to any punishment, if he proves that the offence was committed without his
knowledge or that he had exercised all the due diligence to prevent the
commission of such offence.
(2)
Notwithstanding anything contained in sub-section (1), where any offence under
this Act has been committed by a company and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall be deemed to
be guilty
of
that
offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—for the purposes of this section-
(a)
"Company" means any body corporate and includes a firm or other association of
individuals; and
(b)
"director" in relation to a firm, means a partner in the firm.
22. Power to transfer proceedings:—
The
Commissioner may, after
geving
the parties a
reasonable opportunity of being heard, wherever it is possible to do so, and
after recording his reason for doing so, by order in writing transfer any
proceeding or class of proceedings under any provision of this Act, from himself
to any other officer, and by may likewise transfer any such proceedings
(including a proceeding pending with any officer or already transferred under
this section) from any officer to any other officer or to himself:
Provided
that, nothing in this section shall be deemed to require any such opportunity to
be given where the transfer is from any officer to any other officer and the
offices of both are situated in the same city, locality or place.
Explanation.—In this section, the word "proceedings" in relation to any assessee
whose name is specified in any order issued thereunder means all proceedings
under this Act in respect of any year, which may be pending on the date of such
order or which may have been completed on or before such date, and includes also
all proceedings under this Act which may be commenced after the date of such
order in respect of any year in relation to such cases.
23. Compounding of offences:—
(1) Subject
to such conditions as may be prescribed, the Commissioner may, either before or
after the institution of proceedings for an offence under this Act, permit any
person charged with the offence to compound the offence on payment of such sum,
not exceeding double the amount of tax to which the offence relates, as the
Commissioner may determine.
(2) On
payment of such sum, as may be determined by the Commissioner under sub-section
(1), no further proceedings shall be taken against the person in respect of the
same offence.
24. Powers to enforce attendance, etc:—
All
authorities under this Act shall, for the purposes of this Act, have the same
powers as are vested in a Court under the Code of
Civil
Procedure, 1908 while trying a suit, in respect of enforcing the attendance of
and examining any person on oath or affirmation or for compelling the production
of any document.
25. Bar to proceedings:—
(1) No suit
shall lie in any
Civil
Court to set aside or modify any assessment made or order passed under this Act.
(2) No suit,
prosecution, or other legal proceedings shall lie against any authority under
this Act or against any employer for anything done or intended to be done in
good faith under this Act or the rules framed thereunder.
26. Power to delegate:—
The
Commissioner may, subject to such conditions and restrictions as the State
Government may by general or special order impose, by order in writing delegate
to the authorities subordinate to him, either generally or as respects any
particular matter or class of matter any of his powers under this Act.
27. Power to make rules:—
(1)The power
to make all rules under this Act shall be exercisable by the State Government by
notification in the Official Gazette.
(2) Generally
to carry out purposes of this Act and to prescribe fees payable in respect of
any applications to be made, forms to be supplied, certificates to be granted
and appeals and applications for revision to be made under this Act and also any
applications for certified copies of documents filed and orders made under this
Act.
(3) Rules
made under this Act shall be subject to the condition of previous publication:
Provided
that, if the State Government is satisfied that circumstances exist which render
it necessary to take immediate action, it may dispense with the previous
publication of any rules to be made under this Act.
(4) Every
rule made under this Act shall be laid, as soon as may be after it is made,
before each House of the State Legislature while it is in session for a total
period of thirty days which may be comprised in one session or in two successive
sessions, and if, before the expiry of the session in which it is so laid or the
session immediately following, both Houses agree in making any modification in
the rule, or both Houses agree that the rule should not be made, and notify such
decision in the Official Gazette, the rule shall from the date of publication of
such notification have effect only in such modified form or be of no effect, as
the case may be, so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done or omitted to be
done under that rule.
27A. Exemptions:—
Nothing contained in section 3 and other provisions of this Act shall apply to--
(a)
the members of the Forces as defined in the Army Act, 1950 or the Air Force Act,
1950 and the members of Indian Navy as defined in the Navy Act, 1957 serving in
any part of the State and drawing pay and allowances as Army or Air Force or
Navy, as the case may be, including the members of auxiliary forces or
reservists, or reserve and auxiliary services serving in any part of the State
and drawing pay and allowances as such auxiliary forces or reservists, or
reserve and auxiliary services, as the case may be, under the budgetary
allocations of the Defence Services.
Explanation.—It is hereby declared for the removal of doubts that nothing in
this clause shall apply or shall be taken to have applied during any period
starting on or after the 1st May, 2000 to persons drawing pay and allowances
from the establishments of the Defence Ordnance Factories situated
in
any
part of the State.
(b) The
badli workers in the textile industry.
(c)
Any person suffering from a permanent physical disability (including blindness),
being a permanent physical disability specified in the rules made in this behalf
by the State Government, which is certified by a physician, a surgeon or an
oculist, as the case may be, working in a Government Hospital and which has the
effect of reducing considerably such individual's
capacity for normal work or engaging in a gainful employment or occupations:
Provided that
such individual or, as the case may be, employer produces the aforesaid
certificate before the prescribed authority in respect of the first assessment
year for which he claims deduction under this sub-section :
Provided
further that the requirement of producing the certificate from a physician, a
surgeon or an oculist, as the case may be, working in a Government Hospital
shall not apply to an individual who has already produced a certificate before
the prescribed authority under the provisions of this sub-section as they stood
immediately before the 1st day of April 1995.
Explanation.—For the purpose of this sub-section, the expression "Government
Hospital" includes a departmental dispensary whether full time or part time
established and run by a Department of the Government for the medical attendance
and treatment of a class or classes of Government servants and members of their
families, a hospital maintained by a local authority and any other hospital with
which arrangements have been made by the Government for the treatment of
Government servants;
(d)
Women exclusively engaged as agents under the Mahila Pradhan Kshetriya
Bachat Yojana
of
Directorate of Small Savings.
(e)
Parents or Guardian of any person who is suffering from mental retardation
specified in the rules made in this behalf, which is certified by a psychiatrist
working in a Government Hospital :
Provided that
such individual produces such certificate before the prescribed authority in
respect of the first, assessment year for which he claims deduction under this
sub-section.
Explanation.—For the purpose of this clause, the expression "Government
Hospital" will have the same meaning as assigned to it in clause (c);
(f) the
person who have completed the age of sixty-five years.
Provided
that such mental retardation shall be duly certified by a registered medical
practitioner.
(g) parents
of guardians of a child suffering from a physical disability as specified in
clause (c),
provided that
such physical disability shall be duly certified by a registered medical
practitioner.
28. Amendment of certain enactments:—
(1) The
enactments specified in the second column of Schedule II are hereby amended in
the manner and to the extent specified in the third column thereof:
Provided
that, nothing in the said amendments shall affect or be deemed to affect;
(i)
any right, obligation or liability already acquired, accrued or incurred for
anything done or suffered, in respect of any period preceding the date of coming
into force of these amendments;
(ii)
any legal proceeding or remedy whether initiated or availed of before or after
the date of coming into force of these amendments, in respect of any such right,
obligation or liability.
(2) The levy,
assessment or recovery of any tax or the imposition or recovery of any penalty,
in respect of such period, under the provisions of the relevant enactments and
all proceedings under them, in respect of all matters aforesaid, shall be
initiated and disposed of, or continued and disposed of, as the case may be, as
if this Act had not been enacted.
29. Grants to local authorities for loss
of revenue:—
Out of the
proceeds of the tax and penalties and interest and fees recovered under this Act
there shall, under appropriation duly made by law, be paid annually to such
local authorities as were levying a tax on professions, trades, callings and
employments immediately before the commencement of this Act, and whose power to
levy such tax has been withdrawn under the provisions of this Act, such amounts
on the basis of the highest collection made by them in any year during the
period of three years immediately preceding the commencement of this Act, as may
be determined by the State Government in this behalf.
30. Establishment of a Fund and
utilisation of the Fund for Employment Guarantee Scheme of State Government.-
(1)
Amount equal to net proceeds of tax and matching contribution to be paid into
the Fund established under the Maharashtra Employment Guarantee Act, 1977.—(1)On
the commencement of this Act, there shall be established a Fund to be called the
Employment Guarantee Fund. The proceeds of the tax levied and collected under
this Act, together with penalties and interest and fees recovered thereunder,
shall first be credited to the Consolidated Fund of the State, and after
deducting the expenses of collection and recovery as determined by the State
Government and the amounts of grants made to the local authorities under section
29, the remaining amount shall, under appropriation duly made by law in this
behalf, be entered into, and transferred to, the Employment Guarantee Fund
established under the Maharashtra Employment Guarantee Act, 1977.
(2) Under
appropriation duly made by law in this behalf, the State Government shall
contribute annually to the Employment Guarantee Fund an amount equal to the
amount transferred to that Fund under sub-section(1).
(3) Any
amount transferred to the Fund shall be charged on the Consolidated Fund to the
State.
(4) From and out of the
Employment
Guarantee Fund establishment under sub-section (1), no sum shall be paid or
applied, except in the manner and for the purpose hereinafter provided.
(5) The amount standing to
the credit of the Employment Guarantee Fund shall be expended, in such manner
and subject to such conditions as may be prescribed for the purpose of
implementing the Employment Guarantee Scheme of the State Government.
(6) The Employment
Guarantee Fund shall be held and administered on behalf of the Government of
Maharashtra by an officer not below the rank of a Secretary to the Government of
Maharashtra, subject to such general or special directions as may be given by
the State Government, from time to time.
