Showing posts with label India. Show all posts
Showing posts with label India. Show all posts

Saturday, October 1, 2016

GST- A SIMPLE, UNIFORM AND TRANSPARENT TAX MEASURE



GST, an abbreviation of the words Goods and Services Tax, is proposed to be introduced in the Indian sub-continent, replacing the Value Added Tax Regime (VAT regime) currenenly opertive since April, 2005. The vision on GST could not go ahead since last 13 years, as there was lack of consensus amongst most of the Indian States on the apprehension that the States’ fiscal auonomy of the States would be seized by the Government India (Central Govt.) to make them cipher. Floods of dialogues yielded, a consesus barring a few States and the foundation of such new project was built up with the 122nd amendment of the Constitution of India (Constitution). The Central Govt, in the meantime, drafted out the Model  GST Law on the procedural and administrative aspects, but the legal and technical aspects, pertaining to the liability, levy of tax and other allied matters, are yet to be sorted out by the GST Council, set-up by the Central Govt. with the Minister of Finance, as its Chairman and the State Finance Ministers and others, as the members. The Council is now on the heels on a war footing devoted exercise to give its birth to the GST Act on 01.04.2017. The Council has already finalized the taxable quantum to accrue tax liability in respect of the North Eastern States at Rs. 10 lakhs in place of Rs. 6 lakhs, as at present and Rs. 20 lakhs in respect of other States. The rates of tax and other ancillary matters are still under examination. The marathan trainings to the law operating machineries are being imparted, batch by batch, in full swing,
        GST, in fact,  is prospective measure to levy a single consolidated tax on the sales of the goods and the services. It is designed as an admixure of the Central and States laws.   The central laws are (i) the Cenrtal Excise Duty Act, (ii) Additional Central Excise Duty Act (iii)Excise Duty levied under the Medicinal and Toiletries Preparation Act (iv) Service Tax Act, (v) Additional Customs Duty, commonly known as the Countervailing Duty- levied under the Customs Act, (vi) Special Additional Duty of Customs under the Customs Act, 1962,(vii) Surcharge and (viii) Cess, while the State laws are  (i) The Value  Added Tax Act (VAT Act), (ii) The Sales Tax Act, (iii) Amusement and Entertainment tax Act, (iv) Luxuries Tax Act, (iv) The tax on lotteries and betting. (v) Surcharge (vi) Cess and (vii) Entry Tax. The law on sales tax will include as well as Central Sales Tax Act, 1956 (Central Act).
      GST law will be simple and uniform measure of tax to provide relief to the industrialists, traders and consumers from multiplicity taxes. Unlike the VAT Act, the consumers will get the benefit of deduction of tax paid on previous purchases made making way of arresting  price rise to a great extent. The commodities like, crude oil, petrol oil, diesel oil with other petroleum products and liquor will be excluded in the GST net-work and the taxability of these goods will be governed by a separate road map with an independant tax-net, as was existent prior to 01.07.1993. In such  a case, in order to govern the inter-State sales and stock transer of such goods, the continuance of the Central Act may be imperative..   
      The proposed GST regime will have three tier system, that is, three administrative laws will be there. (1) SGST  Act (State Goods and Services Tax Act)-to levy tax under the State Goods and Services Tax Act), (ii), CGST Act  (Central Goods and Services Tax Act)- to levy tax under the Central Goods and Services Tax Act), (iii) IGST (Integrated Goods and Services Tax Act) to levy tax under the Integrated Goods and Services  Tax Act (Inter-State Sales), The IGST  and CGST Act  will be enacted by Parliament, while SGST Act by the State Legislatures. The  taxing authoritiies under the IGST & CGST Acts will be appointed by the Board ( the Central Board of Excise and Customs, constituted under the Central Board of Revenue Act,1963)while the State Govt. will  appoint the SGST officials.
         The prolonged system of the goods, declared to be of special importance in the course of inter-State trade or commerce, providing the tax  benefits and other facilites, will be dismantled to make equal stature in the tax scenario. The consolidated rate of tax will be uniform and within the range of 20 to 22 paise in a rupee. The consolidated rate of tax may be much lower, which is now in and around of 30 paise. The present mode of stock transfer of goods to other States with tax free movement will attract tax-net, but the formulation is to be waited. The bogus deals of prevelant stock transfer of tea, coal, bamboo, superi etc. in Assam may require to bid a good bye. The GST is a methodical and chain system of deals, but the chrnonic long continued practice of avoidance or evasion of taxes with the nexus at different levels can not be ruled out. The functioning of the Vigilance Wing and Check Post machinery will, therefore, have a dire necessity for succssful implementation of the projects.
              Assam is mainly a consuming State. The recurring cost in course of movement of goods viz. transporting cost, labour cost, gratification at different angles, abnormal profit, tax elements may yield heavy price hike. The quantum of tax, collected will be lesser, as the earlier taxes paid will be admissible for credit or reimbursement. In 2015-16, the total collection of tax under the State taxation department was Rs.8614.00 in which Rs. 7641.00 includes  VAT & CST, while Rs. 567.00 is Entry tax.  VAT and CST amount of Rs.7641.00 includes about 33% of Crude Oil and Petroleum etc. tax, that is, Rs. 2521.00. The other tax on sales stands  Rs.5120.00. While addiing Rs. 567.00 (Entry tax), Rs.19.00 (Amusement tax) and Rs. 10.00 (Luxury tax), it will come to s 5716.00. This was the collection of tax revenue in 2015-16 of the respective Acts proposed to be transferred to GST. If the collection of tax on the proposed GST measure go up, this is well and good; otherwise, the State will have to remain at the mercy of the Central Govt. for compensation, as assured. In fact, this may be a far cry.
          GST  will, no doubt, bring a drastic economic evolution, It is a simple, uniform and  is anticipated to be transparent. However, if the economy of the poor State like Assam gets any set back, the hope and asipiration of the people of Assam will be frustrated and it may turn to a catastrophe. We are to wait and see.
                                                              
                                                                                      (Mrinal Kanti Chakrabartty)
                                                                 R.G.Barua Road, Lakhipath,  Guwahati-781-024

Tuesday, March 15, 2016

Arrest mounting tax dodging activities

The collection of tax revenue in the state of Assam is increasing at the fast rate. The evasion of taxes is also getting the momentum. The alertness of tax official to check, prevent and arrest the tax dodging activities should get the momentum.  

Tuesday, June 9, 2015

Proposed Goods And Services Tax Regime States’ Economic Sovereignity Is Likely To Be Curtailed


Since the introduction of the Government of India Act, 1935, the power to levy tax on the sales or purchases of the goods along with some other allied functions within the respective territorial areas of the erstwhile provinces of India was vested upon the Provincial Legislative Assemblies of the States. After India became a Democratic Republic Nation, the Constitution of India (Constitution) was adopted and it became effective from the 26th January, 1950 with the Federal structure of Governments. The existent four taxation laws on the sales and purchases of goods in Assam, namely; the Assam Sales Tax Act, 1947, the Assam Finance (Sales Tax) Act, 1956, the Assam Sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants Taxation Act, 1955 and the Assam Purchase Tax Act, 1967 were amalgamated and consolidated to give birth to a new tax law, the Assam General Sales Tax Act, 1993 (AGST Act) from 01.07.1993. The said law Act was dismantled to design the Assam Value Added Tax Act, 2003 (VAT Act) effective from 01.05. 2005. The levy of tax at every stage in the series of the sales of goods made with the provision of credit of input tax paid at the point of the previous purchases by a registered dealer to the other was the main phenomenon of the Act. The goods like- crude oil, petrol, diesel with other petroleum products, tea, bitumen, liquor etc., however, were kept out side the VAT scenario, designing those items as the first point taxable goods in Assam in the new Act. Contrary to restriction on input tax credit on the sales of such goods, a clash was maintained by incorporating the provisions for set-off the tax, paid on the auction purchased tea and warehouse purchased branded liquor, creating thereby an utter confusion. The State’s legitimate tax has been secured, the traders use to get the input tax credit to avoid double/multiple taxation, but the consumers are to bear the burden of heavy price rise owing to such multiple levy of tax, beset with, other allied elements. The VAT system is methodical, chronological and self-designed, but some inner set-backs are well existent there. The mounting chronic evasion of taxes without proper vigilance machinery is counted as a serious blow to the legitimate revenue earnings. The mode of input tax credit, the ways and style of assessment including audit assessment seem to be unsystematic and irrational. Of course these asre the administrative matters and responsibility lies with the competent authority to look upon the same.
      A project was drawn up by the Government of India (Centre) a couple of years back for unification of some Central and State tax laws to be baptized as ’Goods and Services Tax’  (GST) in a designed manner. The project, however, could not be materialized as yet, though it was announced to make effective from 01.04.2010, being followed by other dates. The ground-yard of the project could not be prepared, by way of amending the Constitution, as some States are not in favour of the project, which they apprehend that the prolonged fiscal autonomy and austerity of the States would be hijacked by the centre. Such unification is, no doubt, aimed at simplification of the multiple tax system at various angles, but it is likely to create a vacuum in the State’s economy making them solely to be dependant on the Centre.  The process of amendment of the Constitution was started long back, but it is still in the doldrums. The Lok Sabha recently adopted the bill, but it is under scrutiny by the Rajya Sabha. Even after Rajya Sabha’s clearance, the concurrence from at least 50% States will be incumbent. Of course, Assam was the pioneer to accept the project without proper study and examination on the ultimate fate. It is still doubtful, if the proposed project can be materialized from 01.04.2016, as announced by the Union Finance Minister Arun Jately, while the project is still hanging in the balance.
      The GST literature indicates that a series of Central and State laws will be unified and designed in a unique way to simplify the existing multiple levy of tax at the Central and the States’ level. It is intended to consolidate and to design a single law at the behest of the Centre. The unified Central cum State laws will cover the following:
     Central taxes :  Central Excise Duty, Additional Excise Duties, Excise Duty levied under Medicinal & Toiletries Preparation Act, Service Tax, Additional Customs Duty commonly known as countervailing Duty (CVD), Special Additional Duty, Surcharge and Cess.
    State taxes : Value Added Tax, Sales tax, Entertainment tax, Luxury tax, Taxes on lottery, betting and gambling; State Cess and Surcharges, Entry tax not in lieu of Octroi.
 The item of goods, proposed to be excluded from the GST net are - petroleum and petroleum products, namely; petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption besides tobacco.
 A dilemma is prevailing on the fate of the existing Purchase tax, Stamp Duty, Vehicles tax, Electricity duty and other Entry tax and Octroi measures. In Assam, the measure of purchase tax is not presently effective; though a vital necessity is felt that the last point purchase of goods like raw jute, superi, hides and skins, bones of animals, birds etc. should have an independent base of tax entity, as previously existent for the growth of economy.                                                                 
Contrary to the proposed tax measure, the GST law is intended to discourage the value added tax charged and collected on each sale, but to charge the differences only to avoid heavy price rise, as prevalent. The Tax Credit Accounts are to be guided, as under:
(A)    Out put tax: (i) CGST, (ii) SGST. (Central GST and State GST)
(B)       Input tax: (i) CGST and IGST against CGST out put tax, (ii) SGST and IGST against SGST out put tax (Central GST, State GST and Inter-State GST).
 Recently, the Union Finance Minister declared that one percent tax will be levied temporarily on the inter-State sales.
    A full-fledged scheme of the GST is yet to be made public. It will be available after the Constitution is amended and the draft law is processed.
      The GST will be a Central law. In respect of industrial production, the element of tax on GST will be levied at source in a comprehensive manner. The subsequent levy of such tax is to be followed according to the formulated principles. It may be that the States will simply be the mechanical device of the centre and is to remain cipher. The States, as we guess, will not be in a position to safe guard the local interest, when so warranted, as at present and to remain dependent on the Centre for fund allocation and other allied matters. The federal character of the States in the matter of fiscal autonomy is likely to take a good bye and unitary imposition at the behest of the Centre may take berth. A final picture will be visible after the project is materialized.

Friday, November 21, 2014

Letter to Shri Narendra Modi, the Hon’ble Prime Minister of India

To,
Shri Narendra Damodardas Modi,
Hon’ble Prime Minister of India,
NEW DELHI-110-011



Respected Prime Minister Sir,
                   At the out-set, I take the privilege to convey my high regards to you. After your assumption of office as the Prime Minister of India, I wrote a letter to your good-self on the 30th May, 2014 and pointed out some genuine problems of the State of Assam, wherefrom I hail. I was favoured with the acknowledgement letters dated 21.07.2014 and 29.08.2014, issued from the Prime Minister’s Secretariat. In fact, we are glad to find, in the meantime, that you are providing a profound and dynamic leadership of the great Nation, the Sovereign, Socialist, Secular, Democratic, Republic of India and you have been implementing many of yours noble thought- provoking- visions in the global platform as well as in the internal scenario of the country with zeal and enthusiasm. Your deep sense of fraternity towards the common people and maiden efforts for uprooting the acute curse of poverty of the poor and downtrodden people of the sub-continent with other prevailing odds irrespective of any class, creed, cadre and religion so as to achieve a ‘Swachha Bharat’(Clean India), have obviously touched the hearts of the mass people. We found from the media publications and projections that you are on the heels to implement the various plans and programmes, designed by your Government, restlessly, but with utter zeal and efficiency. We congratulate you for your sincere and honest efforts and endeavours for such wonderful gesture and modus-operandi towards our mother land, India. We are also looking forward that the hard days, experienced by the people with various criticalities, complexities and eventualities, will very soon come to end. Our moral support and good wishes will persist in such constructive missions.
Sir, you are aware of the fact that the North Eastern region of the country is very much backward, compared to the most other States of India. Even though there are immense visible and potential resources in the region, these could not be utilized and mobilized properly for some obvious reasons, which you must have ascertained by this time. The political and administrative doldrums are also the causes of such odds, which I need not explain any more. There had been exploitations at various angles from in and out since the British era and this has not made a halt even after 67 years of post -independent period of the country. The people of Assam are being deprived in many aspects of the avenue of employment and the efforts for eradication of the shyness of fiscal condition have been quite meager. The main agricultural and mineral based industries, like; tea and petroleum are not for the poor classes of people and the honey is suck by the privileged ones. The predominance of capitalism is getting the momentum and the concept of socialism, as ensured in the preamble of the Constitution of India seems to be nothing but almost a farce. The lacks of sincere endeavour on the part of the Government of Assam as well as the cipher attitude of the Government of India towards the people of this poor State of Assam are entirely and profoundly responsible for these odds. The people of Assam naturally desire that a proper study, research and analysis on the causes of economic deficiencies of this region will soon be taken up by the newly installed Government of India, of which you are the head at present, so as to bring out the designed and suitable way for its proper and lasting solution and onward way of remedy.
Sir, Assam is a part- State of India, which is full of ancient historical and mythological legendary. The holy temples like  Kamakhya, Bhubaneswari, Bagalamukhi, Chhinnamasta, Dhumawati, Ugratara, Sukleswar, Bhairabi, Umananda, Nabagraha and Basistha in greater Guwahati, the holy temples of Lord Vishnu (Ananta Sayan) and foot- prints of horses of Vir Arjuna on his way back from Manipur, located at Aswaklanta on the Brahmaputra river bank, Madan Kamdev, Doulgovinda and Dirgeswari temples of North Guwahati, the Agnigar Hills (Usha- Anirudda’s meeting place), Bamuni Hills (King Ban’s royal palace), Mahabhiarab temple, the foot steps of Shiva Shankar in Hari-Har battle at Tezpur, the Mahamaya temple, near Dhubri, the Sree Suryya and Tukreswari temples near Goalpara are proclaiming the glory of the Ramayana and Mahabharat and other allied eras. In fact, Guwahati is known as the Pancha tirtha ( five pilgrimage) with the combination of (i) Umachal, (ii) Aswaklanta; (iii)Sukleswar; (iv) Umananda and (v) Manikarneswar.  It is, however, painful to note that adequate development of communication facilities with other requisite infrastructures are yet to be achieved and many of these places of historical and mythological legendary are yet to take berth in the Tourism Maps of the State and the country.
Sir, it might have been in your knowledge that another mythological pilgrimage of the Hindus exists about 35 kilometers away from the north-east boundary point of Assam, that is, in the Lohit district of Arunachal Pradesh. This holy place is known as ‘Parashuram Kund’. The mythological events involved are that the river Brahmaputra originally hailed from Manas-Sarowar of China and made a halt in the aforesaid hilly area of North East Frontier Agency (now Arunachal Pradesh). In this halted water-pool, Parashuram, who after killed his mother by an axe at the instance of his father, the great sage Jamadagni and could not part with the axe from his hand, came to this pool and took his bath. Strangely enough, the axe was parted with from his hand immediately after the bath. The mythological events projected in this behalf was that, the said water-pool, which remained  halted, started moving onward to the west, while Parashuram went ahead by walking after taking his bath. The course of the onward flow of the river became known as ‘Lohit’. A few miles after, it took the name ‘Brahmaputra’ and it rolled through the State of Assam and finally merged with the Bay of Bengal crossing the territory of Bangladesh with a separate name ‘Meghana.’  Since centuries back after this miraculous event, this ‘Parashuram Kund’ was recognized as the pilgrimage of the Hindus. In the‘Makar Sankranti’ period (juncture of Poush-Magh month in the middle of January), many religious minded people (pilgrims) use to come to this Kund from the various parts of India, not to speak alone of the North Eastern States of India, assemble in this holy place and take the baths and makes prayer with devotion. There have been a heavy congregation of the people and the festival is observed with a grand fare (mela) and other cultural functions apart from the religious ones. Surprisingly enough, the water of this Kund, full of current, is always visible with a sky blue colour. No body could unveil the mystery of existence of this unique colour. Recently, I had the occasion to go to this beautiful, but hazardous area to have a full glimpse of the site and I partly took my bath in its water.
Sir, as I stated earlier, this pilgrimage is located in Arunachal Pradesh, but the said Government, as I learnt, does not take any interest or initiative for the development of this area including the ways to reach the last point through the insecure cement-built steps. There is no smooth path and the lower portion near the water level is very much tough and dangerous.  It is hardly possible on the part of the teen agers, the ladies and not to speak of the old aged persons like us (of about eighty years of age) to reach to this hazardous place safely. I learnt that in every mela time (in mid January), the holy minded people of Tinsukia and surrounding areas use to make some cleaning and reforming activities, but that is not enough.
            Sir, it is not out of the place to state that with the co-operation of the Government of Arunachal a Buddhist Pagoda and a Buddhist Meditation Centre nearby at Chowkham, beset with, modern and sophisticated constructions, having other modern infrastructures, have been set up, but the said Government, as I learnt did not take any interest and initiative for the reformation and renovation of this old religious heritage even for the sake of ensuring the theme of secularism. Similar case, you will find in another Hindu temple, namely; ‘Malini Temple’ (a deity of Devi Durga) in Arunachal Pradesh, not far from Dhemaji-Chilapathar area, where a temple is there, which is, however, on the point of decay due to lack of proper maintenance and providing other allied infrastructures.
            Sir, such an indifferent attitude was as well projected in the Madhupur Satra of Shri Shri Sankar Deva, the great Vaishnava Saint of Assam at Coochbehar in West Bengal, but the Government of Assam took up ample measures for construction of buildings with other infrastructures, which has now reached almost to a finishing stage. It is not known as to why the Government of Assam did not pay any importance in the matter of reformation and renovation of these holy Parasuram Kund and Malini temple in collaboration with the Government of Arunachal Pradesh so as to perpetuate the heritage of this historical and mythological legendary. Like Hardwar and other hilly areas of India, if a Rope Way system is introduced over the said holy Parasuram Kund the entire scenery will be more attractive and enjoyable for the devotees visiting the area. I have deep conviction of mind that the Government of India would have surely come forward and projected healthy gesture to make reformation and renovation of these heritages and taken proper steps to make it a protected area with proper developments, if the matter would have been taken up earnestly by the Government of Assam since decades back. In fact, the Government of Arunachal, which is mainly manned by the Buddhists and Christians, may hardly take any keen interest in the matter.
            Sir, as a sensitive citizen of India, I crave for your kind indulgence to bring this fact to your kind notice. I shall be very happy and thankful to you, if you kindly look into this matter personally and include these reformation and renovation programme in your road map agenda of the Government towards making a ‘Swachha Bharat’ (Clean India) and execute the same with all modesty, impartiality and sincerity at your command.   

With best regard.                     
Yours sincerely                                                                                                          
(Mrinal Kanti Chakrabartty)
Mrinal Kanti Chakrabarrty
R.G.Barua Road,10-Lakhimipath,
Guwahati-781-024, India

Saturday, September 13, 2014

SALES TAX LAW IN ASSAM

Dealers’ Accounts, Returns, Documents, Evidences Are To Be Treated As Confidential-Otherwise?

   The sales tax laws, currently operative in the State of Assam, are the Assam Value Added Tax Act, 2003 (VAT Act) and the Central Sales Tax Act, 1956 (CST Act). The former governs the sales and purchases of goods including the levy and realization of tax with other allied matters within the State of Assam, while the latter identically governs the sales and purchases of the goods made in the course of inter-State trade or commerce. Except some few provisions like registration, requirement of security, institution of case in the court of law, imposition of penalty, stock transfer and export of goods etc. all other provisions of the CST Act are governed by the VAT Act. A dealer, registered under the VAT Act and/or the CST Act, has to submit return in accordance with the provisions of said Acts in the prescribed manner after which, the taxing authorities of the State of Assam (the Assistant Commissioner of Taxes or the Superintendent of Taxes) takes up the proceedings for assessment of tax under the Acts, as detailed in the VAT Act. A dealer may at any time, require appearing before such taxing authority for the purpose of verification of the books of accounts with other documents and evidences. He may also require to appear accordingly for the hearing of the assessment proceedings and to produce the books of accounts, documents and evidences etc. pertaining to the return submitted by him for verification or examinations by the said taxing authority for the purpose of levy of tax with entertainment of the claims of sales made at the concessional rate of tax or for exemption of taxes, as the case may be.  If the taxing authority finds any disparity, discrepancy or irregularity in the books of accounts and it has the reasons to suspect that there was evasion of taxes, the said authority may seize such books accounts etc. assigning specific reasons to be recorded in writing and grant such dealer a receipt, pertaining to such seizure. Such seized books of accounts can be retained in the custody of the seizing authority for so long as it may be necessary, but it can not be retained beyond one hundred twenty days without the approval of the Commissioner of Taxes, Assam. No books of accounts can be retained by the taxing authority merely by granting a receipt without making any formal seizure and this may be counted as illegal and unauthorized possession.

The VAT Act provided that all particulars contained in any statement, return furnished or accounts or documents, produced by a dealer in accordance with the said Act or in any record of evidence given in the course of any proceedings under the Act (other than the proceedings in the criminal court), or any proceedings relating to the recovery of demand, for the purpose of the VAT Act, are to be treated as confidential and notwithstanding anything contained in the Indian Evidence Act, 1872, no court saves, as aforesaid, is entitled to require any Government servant to produce record or any part thereof or give evidence before it in respect. The said Act, however, relaxed the restrictions and laid down that this can be made available for the following purposes:

(i)for the purpose of any prosecution under the Indian Penal Code, 1860 or the Prevention of Corruption Act or this Act or any other law for the time being in force; (ii) for furnishing any particulars to the Government or person in execution of the VAT Act; (iii) such disclosure may be occasioned by lawful employment under the said Act or of any notice or the recovery of any demand; (iv) for any such particulars  to the Civil Court in any suit to which the Government, which relates to any matter arising out of the proceeding of the VAT Act; (v) any particulars to the officers, appointed by the Comptroller and Auditor General of India for the purpose of audit; (vi) to the authorities conducting the departmental proceedings against the taxing authorities; (vii) to the Central and the State Government authorities for the purpose of levy and realization of tax; (viii) to Bureau of Investigation (Economic Offence) and the Statistical authorities; (ix) to the Central Government for administration of any law in force in India and (x) for publication of any particulars of the dealers in the public interest. These restrictions and relaxations of the VAT Act as well will govern in the books of accounts, documents and evidences under the CST Act, as enunciated in the CST Act. The Act also provides in this context that if any employee of  the Government discloses any of the particulars, referred to the above, he shall on conviction be punished with imprisonment, which may extend to six months or with fine or both. Such prosecution is however, to be instituted without the previous sanction of the Government.

When in course of verification or examination of the accounts, a taxing authority is primarily convinced that there is any evasion of taxes or any attempt thereof or any misuse of the declaration issued or any false or fabricated documents and declaration were produced by him or there is any other violation of the provisions of Acts is there, the taxing he may  provide such dealer an opportunity to submit his written reply as well as of being heard, specifying the charges for institution of a case in the court of law or for imposition of penalty under the provisions of the Act. The offence may as well be compounded, if such dealer offers any prayer and subject to a mutual agreement, arrived between the two to a departmental compromise in this respect with quantum of composition money to be paid. This applies to the cases under the CST Act, which are governed by the VAT Act. There is, however, restriction in respect of the cases under the CST Act where restrictions are obviously there for imposition of penalty or compounding the offences. The institution of cases in the court of law is the ultimate course of action in such cases. In the case of institution of case under the VAT Act, previous sanction of the Commissioner is to be obtained, while previous sanction of the State Government is necessary in respect of the cases exclusively governed by the CST Act. However, before taking up any coercive measure, the assessment of tax is to be completed and the quantum of tax liabilities is to be ascertained. The contemplated penal measure is to be recorded in the said order in absence of which it may be construed that the latter action is product of after thought of the taxing authority.

         A news item pertaining to the evasion of taxes amounting to about ten crore of rupees by two dealers of Guwahati was published in a section of dailies at the instance of the taxing authorities of Guwahati stating , inter-alia, that Ezahars were lodged before the Dispur Police Station in that respect.  No good citizens will ever appreciate or encourage such tax dodging activities by any unscrupulous dealers and will always appreciate the coercive measures to be taken in this behalf in accordance with the provisions of the law enforced in this respect.  The following pertinent questions have dragged us to utter confusion :-

(a) Whether the delinquent dealers were provided with any opportunity of being heard for the alleged foul play adopted by them before lodging ezahar, as in the quasi-judicial proceedings it it seems to be very much incumbent?

(b) Whether they were informed of their additional liabilities to pay the evaded tax to the extent of about ten crore of rupees by serving the demand notice after assessment, which is the normal custom of the taxation department?

( c) Whether there has been any amendment of the VAT Act as well as the Central Act relaxing the mandatory provisions that the returns, accounts, documents and evidences submitted by the dealers before the taxing authority have ceased to be confidential making the same access to the police officers by way of filing F.I.R. under the Indian Penal Code ignoring or superseding the restrictions under the VAT and the CST Act, if already there?

As an officer working in the tax department for long thirty two years and enjoying more than 18 years of post retirement period, we are very much confused for adoption of such a way of action. We hope, the benign Government will kindly be pleased to clarify for our future knowledge.

                                                                                                                       
(Mrinal Kanti Chakrabartty)
R. G. Barua Road, Lakhimipath,Guwahati-781024

Friday, September 12, 2014

Taxation Department- Power Exercise Scenario (Upliftment of economy in a righteous way)



Appointment and Delegation of powers
 The tax administration of Assam was being carried on in a disciplined way within the ambit and competence of the taxation laws, operative in the State. There are as many as nine taxation laws eight of which were enacted by the State Legislature, while one being by Parliament. Each law plays the pivotal role towards the augmentation of revenue to the State Exchequer. The Commissioner of Taxes, Assam is the supreme authority for the purpose of administration of the taxation laws and is appointed by the Government of Assam for the purpose of carrying out the purposes of the Act along with the officials of different cadres right from the rank of the Additional Commissioners of Taxes to the grass root level, the Inspectors of Taxes, specifying the area of functioning in respect of each of the officers. The Commissioner is equipped with the supreme powers to carry on the administration of the Acts, while for the smooth conduct of the administration; he has been empowered to delegate his powers to the officers, appointed to assist him befitting to their status, subject to the conditions and restrictions, as envisaged in the Acts and the rules framed thereunder. It is the prerogative of the Commissioner to assign the powers, to detail the functions of the taxing authority to the best of his judgment in consideration of the knowledge of law, working ability and other allied factors. In the past, the posting of the officers in the important revenue areas were made in consideration of seniority and capability to run the revenue administration, beset with, the neck of proper collection of revenue including the arrear taxes as well as to prevent, detect and arrest the evasion of taxes by the tax dodgers. A dossier of the officers was maintained thereon. As the days are going on, such mode of consideration has been taken a good bye. In the past, the opinion and recommendation of the Commissioner in the matter of posting and transfer, used to gain priority, but now in reverse to that the political views and recommendation are gaining the momentum in many cases. The posting of officers in the check posts and other important areas depends on the choice of the officers and not in the interest of public service. Naturally, erosion has been taken place in the proper and zealous functioning and there has been gradual deterioration of the administration. The Commissioner sometimes fails to exert power and a set-back becomes obvious.
Duties and resposibilities
The duties and responsibilities of the taxation officers have been widely tabled. In a brief (i) an Inspector of Taxes is meant for survey, inspection, checking, preventing and arresting  the evasion of taxes, collection of particulars from different sources for the purpose of verification of the same in the field as well as to take note at the time of assessments of taxes, besides other allied works; (ii) an Assistant Commissioner of Taxes or a Superintendent of Taxes of the unit is responsible for registration of a dealer, for realizing security money to ensure proper payment of tax and proper custody of statutory declaration forms; to make assessment and realization of tax including the arrears taxes, inspection, checking  and detection of evasion of taxes; general supervision of administration in the area and other allied works; (iii) a Deputy Commissioner of Taxes of the zone is to supervise the works of the officers of the units in all spheres including inspection of offices, looking into the position and progress of  collection of revenue with arrears, chalking out special drive for collection of revenue including the arrear taxes and maintenance of liaison with the Commissioner of Taxes,(iv) Deputy Commissioner of Taxes (Appeals) is to function as the appellate authority against the order of assessment imposition of penalty, passed by the Assistant Commissioners of Taxes and the Superintendents of Taxes, when aggrieved by a dealer,. The powers and functions of the Deputy Commissioner (Appeals) are independent and he is not act  by virtue of the powers by the Commissioner, but under the statute of law; (v) Joint Commissioner of Taxes is to discharge the powers and functions, assigned by the Commissioner on different subjects, to make inspection of the subordinate offices, hear revision petition and other allied matters; (v) Additional Commissioner of Taxes is to render assistance to the Commissioner in different matters including inspection, general and law administration,  hearing of revision petition and other allied matters. Each of the officers except the Deputy Commissioner(Appeals), as stated above, is equipped with the powers, delegated by the Commissioner befitting to their status as well as in consideration of the administrative needs.
Enforcement wing
(Repeal Act)
An Enforcement wing was created in the taxation department in the year 1964 for the purpose of checking, preventing and arresting evasion of taxes. In fact, there was no specific provision in the sales tax laws operative in the State to create such wing at the relevant times and the same used to run as a matter of convention. The wing was centrally operated, being manned by one Assistant Commissioner of Taxes with numbers of the Superintendent of Taxes and the Inspectors of Taxes, subject to the supervision and control of the Commissioner of Taxes. An Inspector of Taxes was posted in each unit for the purpose of collection of information and to provide assistance in different aspects to the central wing. In 1967-68, the said wing was decentralized and each zonal Assistant Commissioner was entrusted to head the zonal wing in their respective zones with the Superintendent of Taxes and Inspectors of Taxes placed at his disposal. In the year 1981, in addition to the existing set-up, another Enforcement wing was created centrally under a Deputy Commissioner of Taxes with the numbers of the Superintendent of Taxes. There had been complaints at different corners about the mal-functioning of the officers of the central wing as well harassment to the traders. A section of traders and professional personnel were on the heels to abolish the Enforcement wing. They could manage the bureaucratic and the political set-up of the relevant time and succeeded to dismantle this important wing including the zonal level wings late in December, 1983. Instead of bringing the officers, alleged to have been involved in mal-functioning, to book, the abolition or withdrawal of the wing was unfortunate and was detrimental to the interest of the State revenue. The officers might be bad, but the aim and object of the wing was revenue oriented. The funniest part of thing is that, the Government did not revive the said organization during these long 31 year and encouraged a section of unscrupulous traders to move freely towards evasion of taxes.
(AGST Act)
Previously, four taxation laws in relation to the sale and purchases of the goods were operative, but the same were amalgamated, consolidated to give birth to a single Act, namely; the Assam General Sales Tax Act, 1993 (AGST) with effect from the 1st July, 1993. This Act empowered the State Government (Government of Assam) to constitute a Bureau of Investigation or Vigilance or Enforcement wing consisting of the Officers, appointed by the Government for the purpose of collection of intelligence, enquiry and investigation in connection with the evasion of taxes. A vigilance group was constituted by the Commissioner of Taxes and the officers comprising of such group, were delegated with the powers, but the same was not constituted by the State Government, as laid down. The officers entrusted in the group as well created some displeasure in the name of checking of evasion of taxes, which created out rage amongst the different section of tax payers.
(VAT Act)
The AGST Act was repealed and in its place the Assam Value Added Tax Act, 2003 (VAT Act) came into operation from the 1st May, 2005. In the said Act, a provision to create a vigilance wing was incorporated as well. Unlike the AGST Act, the power to constitute a vigilance wing was vested to the Commissioner, but such group is to be constituted out of the officers, appointed by the State Government to assist the Commissioner. The vital part of such appointment is that the territorial jurisdiction of the officers is to be specified in such appointment made by the Government. The constitution of the vigilance wing by the Commissioner, therefore, has a pre-condition that the appointment of the tax officers for carrying out then purposes of the Act must contain the territorial jurisdiction, as notified by the Government. While constituting such vigilance wing the Commissioner can not specify the area out of his own, but it is relevant to the appointment. Within five days of coming of the VAT Act into force, the Commissioner by a notification delegated his powers to a set of officers to exercise powers under the said Act. The salient feature of such delegation of power was that, it was not preceded by any notification pertaining to the appointment made by the Government with the territorial jurisdiction. The said notification seemed to be not proper in the eye of law. However, with the transfer of the entire group of the officer, this wing ceased to function.
The delegation of power, as stated in the pre-para included,  inter-alia,  the power to make provisional assessment, re-assessment on the escaped or evaded taxes, to undertake the special mode of recovery, to levy interest, to purchase goods in case of under valuation, to compound offence, to impose penalty etc. Actually, the doctrine of separation of power, as envisaged in the Constitution and the definition of the term ‘Superintendent’ left no scope for such delegation of powers of assessment, re-assessment, imposition of penalty etc. Apparently the said delegation of power suffered from shortfall and impropriety.
Functioning of taxing authorities without legal authority
Presently, there is no such vigilance wing, constituted by the Commissioner in the manner, discussed above. It has been, however, learnt that a set of officers are being detailed to roam and function in the matter of inspection of the traders’ business premises, godown, transporters’ godown premises, to make interception of the goods vehicles and inspection thereof throughout the State of Assam. No appointment of such officers under the Act with the territorial jurisdiction was made by issue of notification by the Government and no delegation of power was conferred by the Commissioner in this respect. This seems to be a unique way of functioning currently, where the legal provisions have been given a good bye and some unwritten jungle laws have been introduced.
We have full moral support to undertake checking activities with drastic measures against the tax dodgers, but as a retired officer of the taxation department having prolonged profound experience in the taxation department, we do not deem it proper to keep our eyes closed on such ways of functioning, having no legal base or entity. We have no other ways, but to express our views in writing no matter if it reaches to the deaf ears. The proceedings undertaken for registration, requiring furnishing of security, orders pertaining to assessment, re-assessment, rectification of assessment, penalty, compounding of offences etc. by the officers, suffer from immense lacunae and are found to be fallacious. There is no effort or endevour to make the new comers adequately trained up for want of requisite infrastructure, such as providing training, holding workshops etc.
Conclusion
The prosperity of a State largely and fully depends on the utilization and mobilization of the resources available at its disposal and to make proper use thereof. The revenue collection is always incremental, but the trend of evasion leaps no bound. Unless the tax machinery is active and sincere and moves in a proper and righteous way, the drainage of revenue will continue by way of tax dodging activities.



(Mrinal Kanti Chakrabartty)
       Guwahati-24

Tuesday, July 15, 2014

Sales during the Movement of Goods From one State to other By Transfer of Documents to the Title of the Goods (An analysis and discussion)



Setting up of the check posts-functions thereof

The Government of Assam set-up a number of check posts, inter-alia, at the inter-State border points of Assam and erected barriers with a view to preventing or checking evasion of taxes. The Government as well appointed the taxing authorities for carrying out the purposes of the Acts, namely, the Assam Value Added Tax Act, 2003 (VAT Act) and the Central Sales Tax Act, 1956 (Central Act). The ‘Officer-in-charge of the check post’ is the persons, appointed by the State Government and posted at the check post . Such officers are not to be below the rank of the Superintendent of Taxes. Each check post is to be manned by a set of officers in the cadre of the Inspectors of Taxes for the purpose of smooth operation of the check post round the clock by way of stopping the goods vehicles, keeping the vehicles stationary, as long it is necessary, opening the package or packages to ascertain the correctness and accuracy of the goods carried, if necessary and also to inspect and examine the records and documents so as to ensure that there is no evasion of taxes. A part from the power of operation of the check post, the officer-in-charge of the check post has been equipped with the power requiring production, inspection of books of accounts, search and seizure in the territorial jurisdiction of Assam. In such an exercise, when there is any doubt in relation to the movement of such goods, the Officer-in-charge of the check post has the power to detain the vehicles and when any evasion of taxes is established due to adopting of some malpractices, unfair or fraudulent means under the Acts, such Officer-in-charge has the power to seize the goods, which can be released only after the evaded tax and the penalty are paid or realized. When such tax levied and penalty imposed are not paid, the Officer-in-charge of the Check post has the power to dispose of such seized goods by way of public auction and to credit such auction money pertaining to the sale value of the goods into the State coffer.
Delivery Notes, Road permits and Transit Passes
(i) An owner or a transporter, importing any goods for the purpose of sales inside the State of Assam, is to furnish a Delivery Note, obtained by the importer dealer from the Superintendent of Taxes of the area before the Officers-in-charge of the check post with the declaration that the goods will be accounted for properly and the taxes, as due will be paid. (ii) When any goods are imported by a person for consumption or use, a Road permit, obtained in the same manner from the Superintendent of Taxes of the area is to be furnished before the Officer-in-charge of the check post. (iii) When any goods enters into the State of Assam from the places out side the State of Assam and moves to the other State or States through the corridor of Assam, the owner of the goods or the transporter is to obtain a Transit Pass on application from the Officer-in-charge of the entry check post of Assam, for each consignment of the goods and  to produce the same before the Officer-in-charge of the exit check post and to obtain endorsement thereon before such goods are moved to the places out side the State of Assam. The said endorsed Transit Pass has to be surrendered before the Officer-in-charge of the entry check post.
Liability to pay tax
When any consignment of goods, taxable under the Act, is imported, the owner of the goods (dealer) is to pay tax on the sale value of such goods. When any person imported any goods for own use or consumption on presentation of any Road Permit, he is liable to pay tax under the Assam Entry Tax Act, 2008 (Entry Act), if the goods are taxable under the said Act. When any person obtaining the Transit Pass, fail to surrender the same before the Officer-in-charge of the entry check post with the endorsement of the Officer-in-charge of the exit check post within the specified period of thirty days, the Officer –in-charge of the entry check post is to presume that the goods did not move to the places out side the State of Assam, as designed and the same was consumed in the State of Assam, he is to levy tax and impose penalty after providing an opportunity of being heard.
Sales of goods in the course of inter-State trade or commerce
The Central Act is to govern the procedure of levy of tax on the sales of the goods made in the course of inter-State trade or Commerce. The said Act has provided relaxation (or exemption) in the matter of levy of tax in respect of the sales of goods, effected by transfer of documents to the title of the goods during the movement of such goods from one State to another, export of goods out of the territory of India, sales of goods made to the exporter in the course of export, movement of goods made to places out side the State of Assam not by virtue of sale in the course of inter-State trade or commerce, but by way of stock transfer. Such relaxation (or exemption) is, however, not admissible as a matter of right, but it is subject to scrutiny and examination on the merit thereof.
The sales or purchase of goods in the course of inter-State trade or commerce are of two folds, namely; (a)  by occasioning the movement of goods from one State to other; (b) effecting sales by way of transfer of documents of the title of the goods during the movement of the goods from one State to another. The provisions of the Central Act further made it clear that where any goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purpose of (b) above,  is deemed to have commenced at the time of  such delivery and terminate at the time, when the delivery is taken from the carrier or bailee.  Apparently, therefore, the sales made by way of transfer of documents to the title of the goods can as well be affected, when the goods are placed with the carrier for onward movements after the first sale is affected. The Central Act further provided that when any sale of goods is affected by transfer of documents of title to such goods during their movement from one State to another, any subsequent sale made during such movement by transfer of documents of the title to the goods to the registered dealer, shall be exempted from tax under the Central Act, subject to production of the requisite documents/declaration in this behalf.
Sales by transfer of documents to the title of the goods-procedure thereof
(i) A sale of goods, when affected between two dealers and moves to the first purchaser of such goods, the first purchaser may enter into a contract of sale or supply with a second purchaser in respect of such goods. The said first purchaser in that case may make the sale of the said goods to the second purchaser by transfer of the document to the title of the goods during the movements of such goods by way of making endorsement of the documents relating to such goods to the second purchaser of the goods. Any delivery taken by the first purchaser and thereafter re-booked and despatched to the second purchaser, will foil the purpose of such subsequent sales by way of transfer of documents to the title of the goods and it amounts to be a fresh sale.
(ii) A section of the first purchaser use to make contract of sale with the second purchaser before the first sale is affected and advises the first seller to send the goods to the destination of the second purchaser. The first seller, while making the despatches of such goods direct to the address of the second purchaser, in some cases even use to despatch such goods in the name and address of the second purchaser and consign such goods to the destination of the second purchaser on self consignment basis or in the name of the second purchaser of the goods.
Such deal amounts to be a pre-determined sale and not a sale by way of transfer of documents of the title of the goods during the movement of such goods. The so-called sale or purchase of such goods; can not thus be termed as sale during the course of movement of the goods. The entire concept of sale in the course of movement of goods in such case is beyond the spirit of the Central Act and the purpose is thus obviously defeated.
Procedure of sales by way of transfer of documents of the title to the goods
The actual procedure pertaining to the sales of goods by way of transfer of documents of the title to the goods during such movement of goods are, as below:
(i) In the normal course, the sale made by the first selling dealer to the first purchasing dealer, who is to be a registered dealer, is to be supported by a declaration in Form ‘C’ to be furnished by such first  purchaser to the first seller, making it convenient to get the benefit of tax at the concessional rate.
(ii) In the case of the sales by transfer of documents to the title of the goods, the first purchaser without taking the delivery of the goods, is to make endorsement in the Consignment Notes (viz Road Receipts, Railway Receipts, as the case may be) in favour the second purchaser, making it convenient on his part to take delivery of such goods;
(iii) The first purchaser (second seller) is to collect Form ‘C’ from the third purchaser and is to obtain a declaration in Form E-I from the first seller so as to establish his claim of sales by way of transfer of documents so as to derive the benefit of exemption of tax. If such declarations are not furnished and the transactions are not made in accordance with the procedure, laid down, the benefit of any exemption of tax under the Central Act by the first purchaser, that is, the second seller of the goods; will not be admissible.
(iv) In relation to such deal (sale by way of transfer of documents of the title of the goods), there should not be any variation of the quality and the quantity of the goods.
Mysterious ways of sales
Of late, it could be learnt that a section of traders, industrial organization and the public sector undertakings are importing the goods including the tools, equipments, machineries etc by trucks from the places out side the State of Assam for consumption or use within the State of Assam. The invoices in relation to the purchases of such goods and the consignment notes covering the movement of the goods by trucks contain three names and addresses. One is the first out side the State of Assam, the other is the second person in Assam and the third one is the person/organization within the State of Assam. This was learnt to be a unique way of movement of the goods. When the existence of such three persons in the same deal, came into question, they are said to have explained mysteriously that these are the E-I sales deal and the middle person is exempted from any tax and last person is liable to pay tax under the Entry Act. Assuming that it was alleged to be an E-I sale (though such term is misnomer), how the name of the third party   (second purchaser) could take berth in the original invoice and the despatch documents (viz in the Consignment Note)? The existence of the third party in the original invoice and the despatch documents obviously construes that the sale made to the third party was pre-determined and, that too, before the original movement of the goods was affected. As already discussed, this deal can not achieve the quality and character of sale in the course of movement of goods by way of transfer of documents to the title of the goods (in the language of the party/parties E-I sale of goods). The second party is, therefore, not entitled to any benefit of exemption of taxes under the Central Act. A number of such parties could not face such legal stand and the second party had to pay tax on the value of the goods and penalty for adopting such fraudulent means. Though the actual magnitude of the tax and penalty could not be ascertained, it extended to some lakhs of rupees.  This seems to be a big achievement on the part of the Officer-in-charge of the check post in Assam. The self-seeking tax-dodgers, therefore, designed their new way of action.
Circular, issued by the Commissioner of Taxes
The Commissioner of Taxes, Assam at the instance of the Tax Bar Association, Public Sector Undertakings, dealers issued a circular No.4/2014 on the 30th day of June, 2014, the contents of which are, as below :
“Of late several representations from the Tax Bar Association, Public Sector Undertakings and dealers have been received regarding detention of vehicles carrying goods meant for E-1 transaction at the check post o the ground that the delivery note attached with other supporting documents was not issued by the first buyer in Assam but the subsequent buyer. The matter has been examined and the department is of the view that in case of vehicles carrying goods meant for E-I transaction, the check post authority shall also accept the delivery note/road permit issued by the subsequent buyer. Non acceptance of the statutory Form by the check post authority issued by the subsequent buyer may also result in loss of revenue in the form of entry tax payable by an importer to the department.
Henceforth, a check gate authority shall not detain any vehicle carrying goods meant for E-I transaction and levy tax, penalty on the technical ground that the statutory form was not issued by the first buyer in Assam but by the subsequent buyer. In case any doubt or dispute, he shall refer the matter to the Apex office without detaining the vehicles for necessary action.”
The contents of the circular seem to be most amusing. It seems to be a product of representations made from different angles, as reflected above. There is, in fact, no term E-I sale in the Central Act, but the real term is ‘sale in the course of movement of goods by transfer of documents to the title of the goods.’ Primarily, the term E-1 sale used in the circular was a misnomer and it lacks legal support. E-I Form is one of the instruments to provide exemption of tax on such sales in course of transfer of documents and it can-not be termed itself as sale. As the tax-dodging preventive machinery at the inter-State border, the Officer-in-charge of the check post is bound to examine the mode of the deal and genuineness thereof and when any iota of doubt takes place in his mind, he has the full authority to detain the vehicle for the purpose of further enquiry or investigation. If after such enquiry or investigation, the circumstances are so warranted, the Officer-in-charge of the check post shall have no other alternative but to resort to measure of levy of tax and imposition of penalty.
From the tone of the circular, it transpires that the pertinent question involved in the matter was on the genuineness of the deal of sales during the course of movement of goods was ignored. It was already discussed that such sales affected during the course of movement of the goods can not be pre-determined. If the original booking documents and other connected papers like challans, invoices were pre-destined, this can not be other than a pre-determined sale and the interim dealer (the first purchaser of the goods) can not escape from the liabilities to pay tax. Mere payment of tax under the Entry Act is not enough and non-submission of Delivery Note can not be a technical ground and it is not proper to draw up such conclusion. The Officer-in-charge of the check post is the best authority to exercise his prudence and apply  his best judgment and there should not be any interference at any level. The taxation laws provided wide scope to file appeal or revision petition by a dealer, when aggrieved by any order of the taxing authorities. Hence, the representations from various angles, as stated and the circular issued thereon amounts the curbing the power of the Officer-in-charge of the check post in matter of prevention and checking of evasion of taxes. This may be construed to be premature, prejudicial besides being detrimental to the interest of the revenue of the State.
We hope, a review may be made on the entire episode after examination of the facts and materials for the best interest of the revenue of the State.