Power of survey

Section 33 of the Himachal Pradesh Value Added Tax Act, 2005 deals with power of survey. Notwithstanding anything contained in any other provision of this Act, any Assistant Excise and Taxation Commissioner or Excise and Taxation Officer appointed to assist the Commissioner under sub-section (1) of section 3 or an Excise and Taxation Inspector, duly authorized by the Commissioner may, f

(1) Notwithstanding anything contained in any other provision of this Act, any Assistant Excise and Taxation Commissioner or Excise and Taxation Officer appointed to assist the Commissioner under sub-section (1) of section 3 or an Excise and Taxation Inspector, duly authorized by the Commissioner may, for the purpose of survey regarding ascertainment of commencement of liability to pay tax for registration under section 14 of this Act, and extent of business, enter- (a) any place within the limits of the area assigned to him, or ned to , witha ℮ (b) any place occupied by any dealer in respect of which he exercises jurisdiction, at which the dealer carrying on the business, keeps any of his books of accounts or other documents or any part of his cash relating to the sale or purchase of goods or stock of goods relating to his business and require any dealer, employee or any other person who may at that time and place be attending in any manner to, or helping in carrying on of such business- (i) to afford him the necessary facility to inspect such books of accounts or other documents as he may require and which may be available at such place, (ii) to afford him the necessary facility to check or verify the cash and stock of goods which may be found therein, and (iii) to furnish such information including such statement as he may require as to any matter which may be useful for, or relevant to, any proceedings under this Act.

(2) For the purpose of sub-section (1), no entry in the dwelling house shall be made- (i) after sunset or before the sunrise;

(ii) by any officer below the rank of an Excise and Taxation Officer; and (iii) without obtaining the sanction of the District Magistrate within whose jurisdiction such house is situated. sursa [](3) The dealer shall be bound to disclose true, correct and compete information of his business regarding ascertainment of commencement of liability to pay tax under this Act and if he fails without sufficient cause to furnish such information or furnishes false or incorrect information to the officer specified under sub section (1), or conceals any particulars of sales or purchases, "[or the account books are not found at the business premises] the Commissioner or any person appointed to assist him under sub-section (1) of section 3 may, after giving such dealer a reasonable opportunity of being heard, direct him to pay by way of penalty, a sum equal to twenty five percentum of the amount of tax to which he is assessed or is liable to be assessed.] Sub -section (3) added by Act, No 14 of 2009 vide notification No. LLR-D (6)-20/2009-Leg. Dated 1 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. 2 Inserted by Act No. 2 of 2013 vide notification No. LLR-D(6)-35/2012-LEG dated 05-01-2013 published in R.H.P. on 15-01-2013. Establishment of 34.

(1) If, with a view to preventing or checking evasion of tax check-posts or barriers and inspection of goods in transit. under this Act, the State Government considers it necessary so to do, it may, by notification direct the establishment of a check post or the erection of a barrier or both at such place or places as may be notified.

(2) The owner or person in-charge of a goods carriage or vessel shall carry with him a goods carriage record, a trip sheet or a log book, as the case may be, and a tax invoice or a bill of sale or a delivery note containing such particulars as may be prescribed, in respect of such goods, meant for the purpose of business, and produce the same before an officer in-charge of a check post or barrier or any other officer not below the rank of an Excise and Taxation Inspector checking the vehicle or vessel at any place. Hecking not bu cer In [](2-A) The owner or the person-in-charge of a goods vehicle or vessel entering the limits of the State or leaving the State limits shall, for the purposes of this section, only pass through and stop at the nearest check post or barrier, failing which such owner or person-in-charge shall be liable to pay a penalty, to be imposed by any officer referred to in sub-section (2) equal to ten percentum of the value of goods or ten thousand rupees whichever is greater and such penalty shall be in addition to any other penalty provided for in this section.] (3) At every check post or barrier or at any other place when so Sub -section (2-A) added by Act, No. 14 of 2009 vide notification No. LLR-D (6)-20/2009-Leg. Dated 1 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. required by any officer referred to in sub-section (2), the driver or any other person-in-charge of the [goods carriage] or vessel, shall stop the vehicle or vessel, as the case may be, and keep it stationary as long as may reasonably be necessary, and allow the officer-in-charge of the check post or barrier or the aforesaid officer to examine the contents in the vehicle or vessel and inspect all records relating to the goods carried which are in the possession of such driver or other person-in-charge, who shall also furnish such other information as may be required by the aforesaid officer, and if considered necessary such officer may also search the [goods carriage] or vessel and the driver or other person-in-charge of the vehicle or vessel or of the goods.

(4) The owner or person-in-charge of a goods carriage or vessel entering the limits of State or leaving the State limits shall also give in triplicate a declaration (generated electronically or otherwise) containing such particulars of goods carried in such vehicle or vessel, as the case may be, before the officer-in-charge of the check post or barrier and shall produce the copy of the said declaration duly verified and returned to him by the said officer or before any other officer referred to in sub-section (2) at the time of checking under this section:

Provided that where a goods carriage or vessel bound for any place outside the State passes through the State, the owner or person-in-charge of such vehicle or vessel shall furnish, in duplicate, to the officer-in-charge of the check post or barrier of his entry into the State a declaration in the prescribed form and obtain from him a copy duly verified. The owner or person- in-charge of the goods carriage or vessel, as the case may be, shall deliver within seventy two hours the said copy to the officer-in-charge of the check post or barrier at the point of its exit from the State, failing which he shall be liable to pay a penalty to be imposed by the officer-in-charge of the check post or barrier of the entry [ equal to fifty percentum ] [ 2Provided further that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the burden of proving that the goods have actually moved out of the State, shall lie on the owner or person-in-charge of the vehicle or vessel]; erfurtheiaComing Provided further that no penalty shall be imposed unless the person concerned has been given a reasonable opportunity of being heard.

(5) At every station of transport of goods, bus stand or any other station or place of loading or unloading of goods, other than a rail head or a Post Office, when so required by the Commissioner, or any person appointed to assist him under sub-section (1) of section 3, the driver or the owner of goods carriage or the employee of a transport company or goods booking agency shall produce for examination transport receipt and all other documents and account books concerning the goods carried, transported, loaded, unloaded, consigned or received for Substituted for the words "not exceeding twenty-five percentum of the value of the goods but which shall not be less than fifteen percentum" by Act No.14 of 2009 vide notification No. . LLR-D (6)-20/2009-Leg. Dated 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. 2 New proviso added by Act, No 14 of 2009 vide notification No. LLR-D (6)-20/2009-Leg. Dated 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. transport (maintained by him in the prescribed manner). The Commissioner or the person so appointed shall, for the purpose of examining that such transport receipts or other documents or account books are in respect of the goods carried, transported, loaded, unloaded, or consigned or received for transport, have the powers to break open any package or packages of such goods.

(6) If the officer-in-charge of the check post or barrier or other officer as mentioned in sub-section (2) has reasons to suspect that the goods under transport are meant for business and are not covered by proper and genuine documents as mentioned in sub-section (2) or sub-section (4), as the case may be, or that the person transporting the goods is attempting to evade payment of tax due under this Act, he may, for reasons to be recorded in writing and after hearing the said person, but subject to pervious approval of the Excise and Taxation Officer Incharge of the barrier order the unloading or detention of the goods, for such period as may reasonably be necessary and shall allow the same to be transported only on the owner of goods or his representative or the driver or other person in-charge of the goods carriage or vessel on behalf of the owner of the goods, furnishing to his satisfaction a security [ in the form of cash or bank guarantee or bank draft, equal to twenty-five percentum of the value of the goods. ] 1 Substituted for the words "or executing a bond with or without sureties for securing the amount of tax, in the prescribed form and manner, for an amount not exceeding twenty-five percentum of the value of the goods but which shall not be less than fifteen percentum of the value of the goods:" by Act No.14 of 2009 vide notification No. . LLR-D (6)-20/2009-Leg. Dated 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009.

Provided that where any goods are detained a report shall be made immediately and in any case within twenty four hours of the detention of the goods by the officer detaining the goods to the Assistant Excise and Taxation Commissioner incharge of the District or the Excise and Taxation Officer incharge of the District or barrier, as the case may be, seeking the latter's permission for the detention of the goods for a period exceeding twenty-four hours, as and when so required and if no intimation to the contrary is received from the latter the former may assume that his proposal has been accepted.

(7) The officer detaining the goods shall record the statement, if any, given by the owner of the goods or his representative or the driver or other person-in-charge of the goods carriage or vessel and shall require him to produce proper and genuine documents as referred to in sub-section (2) or sub-section (4), as the case may be, before him in his office on a specified date on which date the officer shall submit the proceeding along with the connected records to such officer as may be authorised in that behalf by the State Government for conducting necessary enquiry in the matter. The said officer shall, before conducting the enquiry, serve a notice on the owner of the goods and give him an opportunity of being heard and if, after the enquiry, such officer finds that there has been an attempt to evade the tax due under this Act, he shall, by order, impose on the owner of the goods a penalty ['equal to twenty-five percentum of the value of 1 Substituted for the words "not exceeding twenty-five percentum of the value of the goods but which shall not be less than fifteen percentum of the value of the goods," by Act No.14 of 2009 vide notification No. . LLR-D (6)-20/2009-Leg. Dated 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. the goods] and in case he finds otherwise, shall order the release of the goods.

(8) If the owner of the goods or his representative or the driver or other person-in-charge of the goods carriage or vessel does not furnish security or does not execute the bond as required by sub-section (6) within ten days from the date of detaining the goods or goods carriage or vessel, the officer referred to in that sub-section may order further detention of the goods and in the event of the owner of the goods not paying the penalty imposed under sub-section (7) within twenty days from the date of the order imposing the penalty, the goods detained shall be made liable to be sold by the officer, who imposed the penalty, for the realisation of the penalty by public auction as may be prescribed . If the goods detained are of a perishable nature or subject to speedy or natural decay or when the expenses of keeping them in custody are likely to exceed their value the officer -in-charge of the check post or barrier or any other officer referred to in sub-section (2), as the case may be, shall immediately sell such goods or otherwise dispose them of. The sale proceeds shall be deposited in the Government treasury and the owner of the goods shall be entitled to only the balance amount of sale proceeds after deducting the expenses and other incidental charges incurred in detaining and disposing of the goods.

(9) The officer detaining the goods shall issue to the owner of the goods or his representative or the driver or the person-in -charge of the goods carriage or vessel receipt specifying the description and quantity of the goods so detained and obtain an acknowledgement from such person or if such person refuses to give an acknowledgment, record the fact of refusal in the presence of the two witnesses.

(10) If the order of detention of goods under sub-section (6) or of imposition of penalty under sub-section (7) or sub-section (8) is in the meantime set aside or modified in appeal or other proceedings, the Officer detaining the goods and imposing the penalty, as the case may be, shall also pass consequential orders for giving effect to the orders in such appeal or other proceedings as the case may be. ompal son,OCin (11) No dealer or any person, including a carrier of goods or agent of a transport company or booking agency acting on behalf of a dealer, shall take delivery of, or transport, from any vessel, station, airport or any other place, whether of similar nature or otherwise, any consignment of goods other than personal luggage or goods for personal consumption, the sale or purchase of which is taxable under this Act, except in accordance with such conditions as may be prescribed with a view to ensuring that there is no evasion of the tax imposed by or under this Act:

Provided that no place which is a railhead or post- office shall be so notified by the State Government. [1(12) Where any person incharge in goods carriage or vessel or any other transporter fails to give information as required under sub-section (2) about the consignor or consignee of the goods, within such time as may be required by the Officer-Incharge of the check post or barrier or other officer as mentioned in sub-section (2), or transports Sub-section (12) inserted by Act, No.14 of 2009 vide notification No. LLR-D (6)-20/2009-Leg. Dated 19.9.2009 published in R.H.P. (Extra-ordinary) on 22.9.2009. the goods without documents or with ingenuine documents, "[or presents bills for declaration at the barrier without the consignment purported to be transported under those bills] any officer not below the rank of Excise and Taxation Officer checking the goods shall, after affording such owner or person incharge or such transporter a reasonable opportunity of being heard, direct him to pay by way of penalty, equal to ten percentum of the value of such goods.] 2Provided that the owner or the person-in-charge of goods vehicle or vessel leaving, ""or entering" the State limits and who has furnished full declaration of goods carried in vehicle in Form VAT XXVI-A electronically through the official web-site of the department shall not be required to stop the vehicle or vessel, for the purpose of this section, at the check-post or barrier;

Provided further that the officer-in-charge of the check- post or barrier or any other officer not below the rank of Excise and Taxation Inspector posted at the check-post or barrier, if considers necessary, may stop the vehicle or vessel for the purpose of this section, the owner or the person-in-charge of the vehicle or vessel shall stop it and keep it stationary as long as may reasonably be necessary, failing which such owner or person-in-charge shall be liable to pay penalty to be imposed by such officer equal to ten percentum of the value of goods or ten thousand rupees whichever is higher.

Explanation -- I .- In this section the expression 'goods carriage' Central Act No. 59 of 1988 has the same meaning as is assigned to it in clause (14) of section 2 of the Motor Vehicles Act, 1988. Inserted by Act No. 2 of 2013 vide notification No. LLR-D(6)-35/2012-LEG dated 05-01-2013 published in R.H.P. on 15-01-2013. 2 The provisos shall be inserted by Act No. 4 of 2014 vide Notification No. L.L.R .- D.(6)-47/2013-LEG dated 29-01-2014 published in R.H.P. on 01-02-2014. 3 Inserted after the words "or vessel leaving" by the Act No. 13 of 2015 vide Notification No. L.L.R .- D(6)- 6/2015-LEG. dated 10-05-2015 published in R.H.P. on 18-05-2015.

Explanation -- II .- For the purposes of sub-section (2), the goods meant for the purposes of personal consumption shall not be construed as meant for the purposes of business.

Explanation -- III .- For purposes of sub-section (7), service of notice on the representative of the owner or the driver or other person-in-charge of the goods carriage or vessel shall be deemed to be a valid service on the owner of the goods. Registration and 35.

(1) For carrying out the purposes of section 34, every carrier submission of returns by carrier of goods and agent of transport companies. of goods, agent of transport company and booking agency having a place of business in the State of Himachal Pradesh and transporting or clearing or forwarding goods on behalf of a dealer, shall be required to obtain a certificate of registration, in the prescribed manner, from the Assessing Authority of the area in which it has a place of business, on payment of such fee as may be prescribed and on furnishing of a security to the satisfaction of the said Authority in the manner as may be prescribed.

(2) Every agency, referred to in sub-section (1), shall submit to the Assessing Authority such returns of the goods transported, cleared or forwarded by it, by such dates and in such manner as may be prescribed.

(3) The Assessing Authority shall have the powers to call for and examine the books of accounts, documents and other record in possession of such agency with a view to verifying the correctness of returns submitted and the compliance to the requirements of provisions of section 34. Assessee etc. permitted to attend through authorised agent.

Section 33, The Himachal Pradesh Value Added Tax Act, 2005 (Act 12 of 2005).