55. Condition for grant of set-off or refund and adjustment of draw-back, set-off in certain M. VAT RULES

55.Condition for grant of set-off or refund and adjustment of draw-back, set-off in certain 
 
circumstances.–
(1) No set-off or refund under these rules shall be granted to a dealer in respect of any amount of tax recovered from him on the purchase of any goods or paid by him or in respect of entry of any goods, -
(a) unless such dealer was a registered dealer under the Act or a registered dealer or, as the case may be, a person holding license under any earlier law at the time of such purchase or entry;
(For the above sub-rule (1) clause (a) following clause (a) are substituted by Notification No. STR-1506/CR-38/Taxation-1 Dt.08.09.2006)
(a) unless the goods are purchased or entry is effected after the 1st April of the year in which the dealer has obtained registration, and the goods are treated as capital assets by the dealer or, as the case may be, have not been used, consumed, sold or disposed off before the date of registration or as the case may be, the dealer was a registered dealer under the Act at the time of such purchase or entry";
(For the above sub-rule (1) clause (a) following clause (a) are substituted and shall be deemed to have been substituted with effect from the 8th September 2006 by Notification No. VAT-1507/CR-17/Taxation-1 Dt. 31st October 2007)
(a) unless the goods are purchased or entry is effected on or after the 1st April of the year in which the dealer has obtained registration and,-
(1)      the goods are treated as capital assets by the dealer and have not been sold before the date of effect of registration, or
(2)   the goods are not treated as capital assets and have not   been sold or disposed off before the date of effect of registration, or
(3) the goods are not treated as capital assets and have been used or consumed in manufacture and the manufactured goods have not been sold before the date of effect of registration, or
(4) the dealer was a registered dealer at the time of such purchase or entry,
(b) unless such dealer has,-
(i)     maintained a true account in chronological order of all the purchases of goods made by him on or after the appointed day, showing the following details:-
(A) the date on which the goods were purchased;
(B) the name of the selling dealer and his registration certificate number, if registered, from whom the goods are purchased, and the description of the goods;
(C) the number of the tax invoice under which they were purchased;
(D) the purchase price of the goods;
(E) the amount of tax, if any, recovered from him by the selling dealer;
(In above paragraph (E) for the words ‘the amount of sales tax’, the words ‘the amount of tax’ are substituted by Notification No. STR-1506/CR-38/Taxation-1 Dt.08.09.2006)
(ii)               in the case of goods in respect of the purchase of which tax has been recovered from the claimant dealer or is payable by him as purchase tax under an earlier law, maintained a true account in chronological order of the goods so purchased and held by him on the appointed day, which shall show the particulars mentioned at (A) to (E) above, and the amount of tax recovered under each of the earlier laws separately.
(2)              The claimant dealer shall, if so required, produce before the Commissioner the original bill/invoice/cash memorandum relating to each purchase in respect of which the claim for set-off has been made in respect of any purchase made before the appointed day, and a tax invoice in respect of any purchase made after the appointed day.
(3)              A dealer who by virtue of these rules, has, in any period become entitled to a sum by way of set-off or refund, may, subject to the other provisions of this rule, adjust such sum against the tax payable according to the return relating to such period. If the sum admissible for such adjustment is in excess of the tax payable according to the said return, the claimant dealer may, at his option, adjust such excess or, as the case may be, part of the excess towards the Central Sales Tax payable by him under the Central Sales Tax Act, 1956, according to the return under the said Act relating to the said period or, may adjust such excess or any balance excess against the tax payable according to the return for any subsequent period falling in the same year.
(For the above sub-rule (3) following sub-rule (3) are substituted by Notification No. STR-1506/CR-38/Taxation-1 Dt.08.09.2006)
(3)(a) Where a dealer has filed a return in respect of any period contained in a year, then he may, subject to the other provisions of these rules, adjust the aggregate of
(i)                 any payment made in respect of the said period before filing of the said return,
(ii)               the total value of the tax deduction certificates received by him in that period, and 
(iii)              the amount adjustable by way of refund adjustment order issued in respect of that period.
(iv)     set-off or refund to which the dealer has become entitled in the said period.
(v)     deposit paid towards voluntary registration.
(In sub-rule (3), in clause (a), after paragraph (iii), the above paragraph (iv) & (v) are added, with effect from 8th September, 2006, as per Notification No. VAT-1507/CR-17/Taxation-1 Dt. 31 October 2007)
(A)    against the tax payable according to the said return, or
(B)    against the tax payable according to the return for the said period filed by him under the Central Sales Tax Act, 1956, or
(C)    against the tax payable according to the return which may be due or may become due under the Maharashtra Tax on Entry of Goods into Local Areas Act, 2003.
(b) If after making adjustment, if any, as provided in clause (a), there be any excess, then the dealer may claim refund of the excess or part of excess in accordance with the rules, or carry forward the same for adjustment towards the tax payable as per the returns to be filed for any subsequent period contained in the said year under the Maharashtra Value Added Tax Act, 2002, the Central Sales Tax Act, 1956 or the Maharashtra Tax on the Entry of Goods into Local Areas Act, 2003.
(4)              Where a notice under sub-section (4) of section 32 or, as the case may be, a notice under the corresponding provisions of any earlier law has been issued for the payment of any sum by a dealer or the dealer has filed any return or revised return without full payment of tax and who is entitled to a refund under these rules or, as the case may be, under any earlier law, the amount so due by way of refund, shall first be applied towards the recovery of the amount in respect of which such notice has been issued or towards the payment of the said tax and the balance amount, if any, shall thereafter be claimed as refund.
(5)              Where the claimant dealer is unable to identify the goods purchased with the goods resold or with the goods used in the manufacture of goods or in the packing of goods, it shall be presumed for the purpose of reduction or disallowance of set-off that the goods so purchased have been used or consumed in the chronological order in which they were acquired whether before or after appointed day.
(6)              Set-off of the tax paid under the Maharashtra tax on Entry of Motor Vehicles into the Local Areas Act, 1987 and of the tax paid under the Maharashtra Tax on Entry of Goods into the Local Areas Act, 2002 in respect of any goods shall be granted to a dealer as if such tax is a tax levied under this Act or, as the case may be, under any earlier law and all of the provisions of these rules including those relating to reduction in set-off and non-admissibility of set-off shall mutatis mutandis apply accordingly.
(7) Where a registered dealer liable to pay tax under this Act,
i)           dies and the business in which the dealer was engaged is continued after his death, by any person or persons,
ii)         transfers or otherwise disposes of his business in whole or in part or effects any change in the ownership thereof, in consequence of which he is succeeded in the business or part thereof, by any other person,
then the person succeeding shall be entitled to take credit of any set-off that is carried forward, if any, at the time of the said death, transfer, disposal or change.
(The above sub-rule (7) is inserted w.e.f. 01.04.2005 by Notification No. STR-1506/CR-38/Taxation-1 Dt.08.09.2006)