WEST BENGAL VALUE ADDED TAX (CERTIFICATE PROCEEDINGS) RULES, 2009

 

PREAMBLE

In exercise of the power conferred by rule 93 of the rules in Schedule F to the West Bengal Value Added Tax Act, 2003 (West Ben. Act XXXVII of 2003), the Governor is pleased hereby to make, with effect from the 15th day of December, 2009, the following rules, namely:

PART I Preliminary

Rule - 1. Short title.

These rules may be called the West Bengal Value Added Tax (Certificate Proceedings) Rules, 2009.

Rule - 2. Definitions.

(1)     In these rules, unless there is anything repugnant in the subject to context,

(a)      "appellate authority" means an authority prescribed by sub-rule (1) of rule 52 of these rules;

(b)      "certificate debtor" means a defaulter;

(c)      "jurisdiction of a Tax Recovery Officer" means the area or areas as specified by the State Government in notification No. 1975-F.T., dated the 15th December, 2009;

(d)      "principal rules" mean the rules contained in the Schedule F;

(e)      "public officer" shall have the same meaning as defined in clause (17) of the Code of Civil Procedure, 1908 (5 of 1908);

(f)       "Schedule" means Schedule F to the Act;

(g)      "section" means a section of the Act;

(h)     "Tax Recovery Officer" means an officer appointed by the State Government in notification No. 1975-F.T., dated the 15th December, 2009;

(i)       "the Act" means the West Bengal Value Added Tax Act, 2003 (West Ben. Act XXXVII of 2003);

(j)       "the appropriate assessing authority" shall have the same meaning as in clause (c) of sub-rule (1) of rule 2 of the West Bengal Value Added Tax Rules, 2005.

(2)     Words and expressions used and not defined in these rules but defined in the Act or in the principal rules, shall have the same meaning as respectively assigned to them in the Act or in the principal rules, as the case may be.

Rule - 3. Transfer of proceedings from one Tax Recovery Officer to another.

(1)     With effect from the date a Tax Recovery Officer assumes jurisdiction in respect of any area, the Tax Recovery Officer since exercising jurisdiction over that particular area shall cease to exercise powers as such in that area, and any proceeding for execution of a certificate pending in respect of that area shall stand transferred to the first mentioned Tax Recovery Officer.

(2)     Where any proceeding for execution of a certificate pending before a Tax Recovery Officer stands transferred under sub-rule (1) to any other Tax Recovery Officer, the officer to whom the proceeding stands transferred may continue the proceedings from the state at which it stood immediately before such transfer and such transfer shall not render necessary the re-issue of any notice, warrant, proclamation or certificate already issued.

PART II

Rule - 4. Procedure to be followed while sending certificate to another Tax Recovery Officer.

When a certificate is sent by a Tax Recovery Officer to another Tax Recovery Officer under sub-section (2) of section 56, he shall

(i)           keep a copy of the certificate in his office; and

(ii)         inform the requiring officer from whom the certificate was received of his having so sent the certificate.

Rule - 5. Procedure to be followed while sending a certified copy of certificate to another Tax Recovery Officer.

(1)     Where only a part of the amount in respect of which a certificate has been forwarded by the requiring officer to the Tax Recovery Officer is to be recovered by any other Tax Recovery Officer under sub-section (2) of section 56, the Tax Recovery Officer shall, before sending a copy of the certificate to the other Tax Recovery Officer, endorse on such copy a certificate in the following form:

Form of Certificate

I,.............................................................Tax Recovery Officer.........................................................do hereby certify (name)

that the document bearing this endorsement is a true copy of certificate No. .......................................dated.......................... forwarded by the requiring officer................................................. against .........................................................for the recovery of an amount of Rs. .................................. (name of certificate debtor)

I do hereby specify that out of the aforesaid amount, an amount of Rs. as noted below, is to be recovered from the certificate debtor, by the Tax Recovery Officer.

(2)     When a copy of the certificate is sent by a Tax Recovery Officer to another Tax Recovery Officer under sub-section (2) of section 56, he shall

(i)       keep the certificate in his office; and

(ii)      inform the requiring officer from whom the certificate was received of his having so sent a copy of the certificate.

Rule - 6. Procedure to be followed on receipt of a certificate from Tax Recovery Officer.

When a certificate or the certified copy of a certificate is sent by a Tax Recovery Officer to another Tax Recovery Officer under sub-section (2) of section 56, the Tax Recovery Officer to whom such certificate or certified copy is sent shall follow the same procedure as is laid down in the principal rules and in these rules including the issue of a notice under rule 2 of the principal rules.

Rule - 7. Intimation by first Tax Recovery Officer.

The Tax Recovery Officer to whom a certificate has been forwarded by a requiring officer under sub-section (1) of section 56 shall intimate the details of all amounts recovered in respect of such certificate from time to time to the requiring officer and also to the Tax Recovery Officer to whom the certificate or a certified copy of the certificate has been sent by him under sub-section (2) of the said section.

Rule - 8. Intimation by other Tax Recovery Officer.

When a certificate or the certified copy of a certificate is sent by a Tax Recovery Officer to another Tax Recovery Officer under sub-section (2) of section 56, the Tax Recovery Officer to whom such certificate or certified copy is sent shall communicate to the first mentioned Tax Recovery Officer and to the requiring officer who issued the certificate the details of all amounts recovered by him in respect of such certificate from time to time.

Rule - 9. Intimation by requiring officer.

Where a certificate has been issued by a requiring officer, he shall keep the Tax Recovery Officer to whom the certificate has been forwarded by him under sub-section (1) of section 56 and any other Tax Recovery Officer to whom the certificate or a certified copy of the certificate has been sent under sub-section (2) of the said section, informed of any tax, interest or any other sum, as the case may be, paid or time granted, if any, for payment subsequent to the issue of such certificate.

Rule - 10. Form of notice under sub-section (5) of section 55 of Act and rule 2 of principal rules and form of petition under sub-section (7) of said section.

(1)     The notice under sub-section (5) of section 55 of the Act and notice of demand under rule 2 of the principal rules shall be issued in Form No. V.A.T.C.P. 1 which may be so varied as the circumstances of each case may require.

(2)     The certificate-debtor may, except disputing the propriety or correctness of assessment of tax, imposition of penalty, determination of late fee or determination of interest, in respect of which certificate is sent under sub-section (2) of section 55 of the Act, present a petition, in duplicate, under sub-section (7) of the said section as far as practicable in the following form:

FORM OF PETITION

Form of petition under sub-section (7) of section 55 of the West Bengal Value Added Tax Act, 2003 for denying liability in the certificate issued under sub-section (2) of section 55

To

The Tax Recovery Officer..................................................

With reference to the certificate No. ............................................dated...............................referred to in the notice in Form No. V.A.T.C.P. I received on............................... (copy of which is enclosed) I,...................................................... son of..........................................................., am the................................................... (status in relation to the business against which certificate is given), and do hereby deny, on behalf of the certificate-debtors shown, *the liability in whole/*the liability to pay more than Rs. ............................ (in figures) (Rupees.........................................................................) (in words) on the following grounds:

(Here enter the grounds on which this petition it relied upon)

I, on behalf of all the certificate-debtors, therefore respectfully pray that the said certificate may be [1]set aside/modified/varied

Verification

I,.......................................................................................me petitioner named in this petition, do hereby declare that what is stated herein is true to the best of my knowledge and belief.

Dated: Signature.............................................................

Status....................................................................

PART III Attachment and sale of property

Rule - 11. Continuance of attachment subject to claim of encumbrancer.

Where, in course of investigation made under rule 11 of the principal rules, the Tax Recovery Officer is satisfied that the property is subject to a mortgage or charge, other than a mortgage or charge referred to in section 54 of the Act or rule 16 of the principal rules, in favour of some person not in possession, and thinks fit to continue the attachment, he may do so, subject to such mortgage or charge.

Rule - 12. Proclamation of sale.

For the purpose of ascertaining the matters to be specified in a proclamation of sale, the Tax Recovery Officer may summon any person whom he thinks necessary to summon and may examine him in respect of any matters relevant to the proclamation and require him to produce any document in his possession or power relating thereto.

Rule - 13. Sale to be held by whom and his remuneration.

If the Tax Recovery Officer is of the opinion that it will be more advantageous to appoint a person other than an official subordinate to him to sell a property, he may appoint a fit person for the purpose and fix the remuneration to be allowed to him for rendering such services; and the remuneration payable to such person shall be deemed to be costs of the sale.

Rule - 14. Reserve price.

It shall be competent for the Tax Recovery Officer to fix a reserve price in respect of any property other than agricultural produce, to be sold and order that any bid shall be accepted only on condition that it is not less than the said reserve price.

Rule - 15. Report of sale.

The officer conducting a sale shall forthwith pay the entire amount received by him from the purchaser of the property into the Government treasury and shall submit a full report of the sale to the Tax Recovery Officer.

Rule - 16. Sale proceeds not to be disbursed till sale is confirmed.

The proceeds of the sale of immovable property shall not be disbursed until the sale is confirmed by the Tax Recovery Officer or, where an appeal has been filed against the order confirming the sale, until the disposal of the appeal.

Rule - 17. Registration of sale.

Every Tax Recovery Officer granting a certificate of sale to the purchaser of immovable property sold under the principal rules shall send a copy of such certificate to the registering officer concerned under the Registration Act, 1908 (16 of 1908) within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate.

Rule - 18. Forms.

The following forms, which may be so varied as the circumstances of each case may require, shall be used for the purpose mentioned against each:

(i)       Form No. V.A.T.C.P. 2, for issuing a warrant of attachment of movable property under rule 20 of the principal rules;

(ii)      Form No. V.A.T.C.P. 3, for issuing a prohibitory order in the case of a debt not secured by a negotiable instrument under sub-clause (i) of clause (c) of sub-rule (1) of rule 26 of the principal rules;

(iii)     Form No. V.A.T.C.P. 4, for issuing a prohibitory order in the case of a share in a corporation under sub-clause (ii) of clause (c) of sub-rule (1) of rule 26 of the principal rules;

(iv)    Form No. V.A.T.C.P. 5, for issuing a prohibitory order in the case of other movable property under sub-clause (iii) of clause (c) of sub-rule (1) of rule 26 of the principal rules;

(v)      Form No. V.A.T.C.P. 6, for issuing a notice of attachment of a decree of a civil court under rule 27 of the principal rules;

(vi)    Form No. V.A.T.C.P. 7, for issuing a notice of attachment where the property consists of a share or interest in movable property under rule 28 of the principal rules;

(vii)   Form No. V.A.T.C.P. 8, for issuing an order of attachment of salary or allowances under rule 29 of the principal rules;

(viii)  Form No. V.A.T.C.P. 9, for issuing an order of attachment of a negotiable instrument under rule 30 of the principal rules;

(ix)    Form No. V.A.T.C.P. 10, for issuing a notice of attachment of movable property in the custody of any court or public officer under rule 31 of the principal rules;

(x)      Form No. V.A.T.C.P. 11, for issuing an order of attachment of property consisting of an interest in partnership property under rule 32 of the principal rules;

(xi)    Form No. V.A.T.C.P. 12, for issuing a warrant of sale of property under rule 37, or sub-rule (1) of rule 52, of the principal rules;

(xii)   Form No. V.A.T.C.P. 13, for issuing a proclamation of sale of movable or immovable property under rule 38, or sub-rule (2) of rule 52 of the principal rules;

(xiii)  Form No. V.A.T.C.P. 14, for issuing a certificate of sale of movable property under sub-rule (2) of rule 44 of the principal rules;

(xiv)  Form No. V.A.T.C.P. 15, for issuing an order for payment under rule 47 of the principal rules;

(xv)   Form No. V.A.T.C.P. 16, for issuing an order of attachment of immovable property under rule 48 of the principal rules;

(xvi)  Form No. V.A.T.C.P. 17, for issuing a notice to the defaulter for settling a proclamation of sale under rule 53 of the principal rules;

(xvii) Form No. V.A.T.C.P. 18, for making an order of confirmation of sale of immovable property under sub-rule (1) of rule 63 of the principal rules;

(xviii)   Form No. V.A.T.C.P. 19, for issuing a notice to interested parties under the proviso to sub-rule (2) of rule 63 of the principal rules;

(xix)  Form No. V.A.T.C.P. 20, for issuing a certificate of sale of immovable property under rule 65 of the principal rules;

(xx)   Form No. V.A.T.C.P. 21, for issuing a certificate to a defaulter authorising him to mortgage, lease or sell immovable property under sub-rule 1(2) of rule 66 of the principal rules;

(xxi)  Form No. V.A.T.C.P. 22, for-issuing an order of attachment of a business under sub-rule (1) of rule 70 of the principal rules.

PART IV Maintenance and custody, while under attachment, of livestock or other movable property, fees for such maintenance and custody, sale thereof and disposal of sale proceeds

Rule - 19. Property to which rules apply.

The rules in this Part relate to movable property (other than agricultural produce) attached by actual seizure under the principal rules.

Rule - 20. Custody at place of attachment.

(1)     Where the property attached is of such a nature that its removal from the place of attachment is impracticable or its removal involves expenditure out of proportion to the value of the property, the attaching officer shall, subject to any directions which the Tax Recovery Officer may issue in this behalf, arrange for the proper maintenance and custody of the property at the place of attachment. The attaching officer shall forthwith send a report of having done so to the Tax Recovery Officer.

(2)     On receipt of a report from the attaching officer under sub-rule (1), the Tax Recovery Officer may either order the removal of the property to a place which he shall specify or sanction its maintenance and custody at the place of attachment under such conditions as he may think fit.

Rule - 21. Removal and custody of property in other cases.

Where the attached property is not kept at the place of attachment, it shall be kept in the custody of an officer (hereinafter in this Part referred to as the "Custody Officer") subordinate to the Tax Recovery Officer and authorised by the Tax Recovery Officer for this purpose. The Custody Officer may remove the property to the office of the Tax Recovery Officer, for custody under his own supervision or, with the approval of the Tax Recovery Officer, may make such arrangements as may be convenient and economical for its safe custody with any other fit person under his own supervision and the Tax Recovery Officer may fix the remuneration to be allowed to such person.

Rule - 22. Property may be handed over to the certificate debtor.

Notwithstanding anything contained in rule 20 or rule 21, the attaching officer or the custody officer may, with the previous approval of the Tax Recovery Officer, entrust, subject to his right of supervision, the attached property to the certificate debtor on his executing a duly stamped bond (sapurdnama) in Form No. V.A.T.C.P. 23 which may be so varied as the circumstances of each case may require.

Rule - 23. Custody of attached cash, securities etc.

If the property attached consists of cash, Government or other securities, bullion, jewellery or other valuables, the attaching officer shall send them for safe custody to the nearest Government treasury.

Rule - 24. Claim of any person other than the certificate debtor to the property under attachment.

When the property remains at the place where it is attached in the custody of the attaching officer, and any person other than the certificate debtor claims the same, or any part thereof, the officer shall nevertheless remain in possession and shall direct the claimant to prefer his claim to the Tax Recovery Officer.

Rule - 25. Return of property on cancellation or withdrawal of attachment.

(1)     If in consequence of withdrawal or cancellation of the attachment, the certificate debtor becomes entitled to receive back the movable property attached, the possession thereof shall be given to him on payment of costs, charges and expenses due, if any, in respect of the execution of the certificate against such property.

(2)     For the purpose of giving possession under sub-rule (1), the attaching officer shall inform the defaulter that the property is at his disposal.

(3)     In the absence of any person to take charge of the property, the officer shall, if the property has been moved from the premises in which it was seized, replace it where it was found at the time of seizure.

Rule - 26. Property may be sold if costs, etc not paid.

In default of the payment of costs, charges and expenses referred to in sub-rule (1) of rule 25 of the principal rules, the movable property or such portion thereof as may be necessary shall be sold by auction and after defraying the expenses of such sale and the costs, charges and expenses aforesaid, the balance, if any, of the movable property as has not been sold shall be handed over to the certificate debtor.

Rule - 27. Feeding and tending of livestock under attachment.

Whenever livestock is kept at the place where it has been attached, the certificate debtor shall be at liberty to undertake the due feeding and tending of it, under the supervision of the attaching officer.

Rule - 28. Removal of livestock.

In the event of the certificate debtor failing to feed attached livestock, the livestock may be placed in the custody of the Custody Officer or in the circumstances mentioned in rule 29 of these rules, may be placed in a pound maintained by the Government or a local authority.

Rule - 29. Custody of livestock in pound.

If there be any such pound near the office of the Tax Recovery Officer, the attaching officer or the Custody Officer may place in it such attached livestock as can properly be kept therein which case the poundkeeper shall be responsible for the livestock and shall receive the same rates for accommodation and maintenance thereof as are payable in respect of impounded cattle of the same description.

Rule - 30. Custody with a person other than Custody Officer.

Notwithstanding anything contained in rule 29 of these rules the Custody Officer may, with the approval of the Tax Recovery Officer, entrust the attached livestock to any other fit person under his own supervision and the Tax Recovery Officer may fix the remuneration to be allowed to such person, after taking into account the local circumstances and the charges which such person may have to incur for the maintenance and custody of such livestock.

Rule - 31. Expenses of custody, maintenance, etc.

The expenses of maintenance and custody of movable property including the remuneration payable to the person concerned under rule 21 or rule 30, shall be deemed to be costs of the sale.

PART V Delivery of property sold and execution of document or endorsement of negotiable instrument or share in a corporation

Rule - 32. Delivery of movable property, debts and shares.

(1)     Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2)     Where the property sold is movable property in the possession of some person other than the certificate debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser and requiring him to deliver possession of the property to the purchaser within the time stipulated by the Tax Recovery Officer.

(3)     Where such person in possession of the property fails without reasonable cause to deliver possession of the property to the purchaser within the time stipulated by the Tax Recovery Officer, or within such further time as may be allowed by him, the Tax Recovery Officer shall cause the property to be seized and delivered to the purchaser and the provisions of rules 33 and 36 of the principal rules shall, as far as may be, apply to such seizure.

(4)     Where the property sold is a debt not secured by a negotiable instrument, the delivery thereof to the purchaser shall be made by a written order of the Tax Recovery Officer prohibiting the creditor from receiving the debt or any interest thereon and the debtor from making payment thereof to any person except the purchaser and requiring the debtor to make payment thereof to the purchaser within the time stipulated by the Tax Recovery Officer.

(5)     Were the debtor fails to make such payment to the purchaser within the time stipulated by the Tax Recovery Officer, or within such further time as may be allowed by him, the Tax Recovery Officer may take further proceedings to recover the amount due from the debtor as if the debtor were a defaulter in respect of whom the requiring officer had forwarded a certificate under section 55 of the Act for the recovery of arrears of tax equal to the amount of the debt.

(6)     Where the property sold is a share in a corporation, the delivery thereof to the purchaser shall be made by a written order of the Tax Recovery Officer prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon and requiring him to deliver the share certificate or other document of title along with the instrument of transfer duly completed by him to the Tax Recovery Officer within the time stipulated by the Tax Recovery Officer and prohibiting the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

(7)     Where the person in whose name the share may be standing fails to deliver the share certificate or other document of title to the Tax Recovery Officer within the time stipulated by him, or within such further time as may be allowed by him, the Tax Recovery Officer may take steps to obtain a duplicate of the share certificate or other document of title as if the share certificate or other document of title had been lost or destroyed.

Rule - 33. Transfer of negotiable instruments and shares.

(1)     Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share to a person who has purchased it under a sale under the principal rules, the Tax Recovery Officer may execute such document or make such endorsement as may be necessary and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2)     Such execution or endorsement may be in the following form, namely: ".....................................................by ............................................., Tax Recovery Officer................................................in the proceedings for the recovery of arrears under the West Bengal Value Added Tax Act, 2003 against..........................................................".

(3)     The Tax Recovery Officer may cause the document to be executed on proper stamp paper and to be registered if its registration is required by any law for the time being in force and the expenses of such execution and registration shall be borne by the purchaser.

(4)     Until the transfer of such negotiable instrument or share, the Tax Recovery Officer, may, by an order, appoint a person to receive any interest or dividend due thereon and to sign a receipt for the same, and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

Rule - 34. Order of vesting in case of other property.

In the case of any movable property not hereinbefore provided for, the Tax Recovery Officer may make an order vesting such property in the purchaser or in such person as the purchaser may direct, and thereupon, such property shall vest accordingly.

Rule - 35. Delivery of immovable property in occupancy of defaulter.

(1)     Where the immovable property sold is in the occupancy of the certificate debtor or of some other person on his behalf or of some person claiming under a title created by the certificate debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 65 of the principal rules, the Tax Recovery Officer shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom the purchaser may appoint to receive on his behalf in possession of the property, and if need be, by removing any person who refuses to vacate the same.

(2)     For the purposes of sub-rule (1), if the person in possession of the immovable property does not afford free access, the Tax Recovery Officer may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the purchaser, or any person whom the purchaser may appoint to receive delivery on his behalf, in possession of such property.

Rule - 36. Delivery of Immovable property in occupancy of tenant.

Where the immovable property sold is in the occupancy of a tenant or some other person entitled to occupy the same, and a certificate in respect thereof has been granted under rule 65 of the principal rules, the Tax Recovery Officer shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the certificate debtor has been transferred to the purchaser.

PART VI Resistance or obstruction to delivery of possession to purchaser

Rule - 37. Resistance or obstruction to possession of immovable property.

(1)     Where the purchaser of immovable property sold in execution of a certificate is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Tax Recovery Officer complaining of such resistance or obstruction within thirty days of the date of such resistance or obstruction.

(2)     The Tax Recovery Officer shall fix a date for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Rule - 38. Resistance or obstruction by certificate debtor.

Where the Tax Recovery Officer is satisfied that the resistance or obstruction was occasioned without any just cause by the certificate debtor or by some other person at his instigation, he shall direct that the applicant be put into possession of the property and where the applicant is still resisted or obstructed in obtaining possession the Tax Recovery Officer may, at the instance of the applicant, take steps to put the applicant into possession of the property by removing the certificate debtor or any person acting at his instigation.

Rule - 39. Resistance or obstruction by bona fide claimant.

Where the Tax Recovery Officer is satisfied that the resistance or obstruction was occasioned by any person (other than the certificate debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the certificate debtor, the Tax Recovery Officer shall make an order dismissing the application.

Rule - 40. Dispossession by purchaser.

(1)     Where any person other than the certificate debtor is dispossessed of immovable property sold in execution of a certificate by the purchaser thereof, he may make an application to the Tax Recovery Officer complaining of such dispossession within thirty days of such dispossession.

(2)     The Tax Recovery Officer shall fix a date for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Rule - 41. Bona fide claimant to be restored to possession.

Where the Tax Recovery Officer is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the certificate debtor, he shall direct that the applicant be put into possession of the property.

Rule - 42. Rules not applicable to transferee pendente lite.

Nothing in rules 39 and 41 of these rules shall apply to resistance or obstruction by a person to whom the certificate debtor has transferred the property after the service of a notice under rule 2 of the principal rules or to the dispossession of any such person.

Rule - 43. Right to file a suit.

Any party not being a certificate debtor against whom an order is made under rule 38, or rule 39, or rule 41 may institute a suit in a civil court to establish the right which he claims to the present possession of the property.

PART VII Appointment, powers and duties of a receiver

Rule - 44. Power of a receiver.

A receiver appointed under the principal rules shall have all such powers as to bringing in and defending suits and for the realisation, management, protection and preservation of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Tax Recovery Officer thinks fit.

Rule - 45. Remuneration of a receiver.

The Tax Recovery Officer may, by a general or special order, fix the amount to be paid as remuneration for the services of the receiver.

Rule - 46. Duties of a receiver.

(1)     Every receiver so appointed shall

(a)      furnish such security (if any), as the Tax Recovery Officer thinks fit, duly to account for what he shall receive in respect of the property;

(b)      submit his accounts at such periods and in such form as the Tax Recovery Officer directs;

(c)      pay the amount due from him as the Tax Recovery Officer directs; and

(d)      be responsible for any loss occasioned to the property by his wilful default or gross negligence.

(2)     The receiver shall maintain true and regular accounts of the receivership and shall in particular maintain a cash book in which all receipts and payments shall be entered from day to day, and also a ledger. He shall also maintain a counterfoil receipt book with the leaves numbered serially in print, from which all receipts for payments made to the receiver shall be given as far as possible.

(3)     Unless the Tax Recovery Officer otherwise directs, the receiver shall, as soon as may be after his appointment, open an account in the name of the receivership in such bank as the Tax Recovery Officer may direct, and shall deposit therein all moneys received in the course of the receivership immediately in receipt thereof save any minimum sums that may be required for meeting day to day current expenses. All payments by the receiver shall, as far as possible, be made by cheques drawn on the bank account.

Rule - 47. Enforcement of receiver's duties.

(1)     Where a receiver fails to submit his accounts at such periods and in such form as the Tax Recovery Officer may direct, the Tax Recovery Officer may direct his property to be attached until such time as such accounts are submitted to him.

(2)     The Tax Recovery Officer may at any time make an enquiry as to the amount, if any, due from the receiver as shown by his accounts or otherwise, or an enquiry as to any loss to the property occasioned by his wilful default or gross negligence and may order the amount found due, if not already paid by the receiver under rule 46, or the amount of the loss so occasioned, to be paid by the receiver within a period to be fixed by the Tax Recovery Officer.

(3)     Where the receiver fails to pay any amount which he has been ordered to pay under sub-rule (2) within the period specified the Tax Recovery Officer may direct such amount to be recovered from the security (if any), furnished by the receiver or by attachment and sale of his property or, if his property has been attached under sub-rule (1), by the sale of such property, and may direct the sale proceeds to be applied in making good any amount found due from the receiver or any such loss occasioned by him and the balance (if any) of the sale proceeds shall be paid to the receiver.

(4)     If a receiver fails to submit his accounts at such period and in such form as directed by the Tax Recovery Officer without reasonable cause or improperly retains any cash in his hands, the Tax Recovery Officer may disallow the whole or any portion of the remuneration due to him for the period of the accounts with reference to which the default is committed and may also charge interest at a rate not exceeding twelve per cent per annum on the moneys improperly retained by him for the period of such retention without prejudice to any other proceedings which might be taken against the receiver.

Rule - 48. Form of order of appointment of a receiver.

An order of appointment of a receiver under rule 70 or rule 71 of the principal rules shall be made in Form No. V.A.T.C.P. 24, which may be so varied as the circumstances of each case may require.

PART VIII Arrest and detention

Rule - 49. Prison in which certificate debtor may be detained.

A person against whom an order of detention has been passed under PART FIVE of the principal rules may be detained in the civil prison of the district in which the office of the Tax Recovery Officer ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the civil courts of such district to be detained.

Rule - 50. Subsistence allowance.

(1)     The subsistence allowance shall be paid to the Tax Recovery Officer or to the Officer-in-charge of the civil prison, as the case may be, by the requiring officer by monthly instalments, in advance before the first day of each month.

(2)     The first payment shall be made to the Tax Recovery Officer for such portion of the current month as remains unexpired before the certificate debtor is committed to the civil prison, and the subsequent payment (if any) shall be made to the officer-in-charge of the civil prison.

Rule - 51. Forms.

The following forms, which may be so varied as the circumstances of each case may require, shall be used for the purpose mentioned against each:

(i)       Form No. V.A.T.C.P. 25, for issuing a notice to show cause why a warrant of arrest should not be issued under rule 74 of the principal rules;

(ii)      Form No. V.A.T.C.P. 26, for issuing a warrant of arrest under PART FIVE of the principal rules;

(iii)     Form No. V.A.T.C.P. 27, for issuing a warrant of detention under PART FIVE of the principal rules;

(iv)    Form No. V.A.T.C.P. 28, for issuing an order of release under rule 78 or rule 79 or rule 80 of the principal rules.

PART IX Appeals to the Appellate Authorities

Rule - 52. Appellate Authority.

(1)     An appeal against an order passed by a Tax Recovery Officer shall lie to an Additional Commissioner and an appeal against a final appellate order passed by such Additional Commissioner shall lie to the Commissioner.

(2)     For the purpose of disposing of appeals arising out of the orders passed by the Tax Recovery Officer, the State Government may, by notification, appoint such number of Additional Commissioners as it may deem fit, and specify in the notification the area or areas over which they shall exercise jurisdiction.

(3)     When an appeal is admitted for hearing the appellate authority referred to in sub-rule (1) may, on a stay petition filed by a certificate debtor, stay, by an order in writing, the execution of a certificate on such terms and conditions as may be directed by him in such order.

(4)     If a certificate debtor wishes to obtain a stay order under sub-rule (2), he shall file a separate stay petition together with his appeal stating briefly the grounds for stay of the execution of the certificate.

Explanation. Commissioner referred to in sub-rule (1) shall include Special Commissioner.

Rule - 53. Form of appeal.

(1)     Every appeal to the appellate authorities referred to in sub-rule (1) of rule 52 shall be made in Form No. V.A.T.C.P. 30, which shall be verified in the manner indicated therein and shall be accompanied by a copy of the order appealed against.

(2)     The form of appeal prescribed by sub-rule (1), the grounds of appeal and the form of verification appended thereto shall be signed

(a)      in the case of an individual, by the individual himself; where the individual is absent from India, by some other person duly authorised by such individual in this behalf; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf,

(b)      in the case of a Hindu undivided family, by the Karta, and where the Karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family;

(c)      in the case of a company or local authority, by the principal officer thereof;

(d)      in the case of a firm, by any partner thereof, not being a minor,

(e)      in the case of any other association, by any member of the association or the principal officer thereof; and

(f)       in the case of any other person not enumerated hereinabove, by that person or by some person competent to act on his behalf.

Rule - 54. Procedure in appeal.

(1)     The appellate authority shall fix a date, time and place for the hearing of the appeal or a stay petition and shall give notice of the same to the appellant and the Tax Recovery Officer against whose order the appeal is preferred.

(2)     The following person or authority shall have the right to be heard at the time of appeal:

(a)      the appellant, either in person or by an authorised representative referred to in rule 61 of these rules;

(b)      the Tax Recovery Officer, either in person or by a representative.

(3)     The appellate authority may, if sufficient cause is shown, at any stage of the appeal grant time to the parties or to any of them, and may, for reasons to be recorded in writing, adjourn, from time to time, the hearing of the appeal.

(4)     The appellate authority may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Tax Recovery Officer to make further inquiry and report the result of the same to the appellate authority.

(5)     The appellate authority may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if such authority is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable.

(6)     The order of the appellate authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.

(7)     On the disposal of the appeal, the appellate authority shall communicate the order passed by him to the appellant, the defaulter (if he is not the appellant) and the Tax Recovery Officer.

(8)     Every appeal shall be disposed of by the appellate authority as expeditiously as possible and endeavour shall be made to dispose of the appeal within six months from the date on which it is presented.

PART X Scale of fees for processes, charges for other proceedings and poundage fees, etc

Rule - 55. Process fees.

The following scale of fees shall be charged for service and execution of processes issued under the Schedule F and these rules:

Rule - 56. Levy and scale of poundage fees.

(1)     In respect of any sale made in the execution of a certificate, there shall be levied a fee by way of poundage on the gross amount realised by the sale, calculated at the rate of 2 per cent on such gross amount up to Rs. 1,000 and at the rate of 1 per cent on the excess of such gross amount over Rs. 1,000.

(2)     The poundage fee leviable under sub-rule (1) shall be calculated on multiples of Rs. 25, that is to say, a poundage fee of 50 R shall be levied for every Rs. 25, or part of Rs. 25, realised by the sale up to Rs. 1,000 and in the case of the proceeds of the sale exceeding Rs. 1,000, an additional fee of 25 R for every Rs. 25 or part thereof on the excess of such amount over Rs. 1,000, shall be levied.

(3)     Where the sale is in more than one lot, the poundage fee shall be calculated with reference to the sale proceeds of each lot separately.

(4)     The poundage fee under sub-rule (1) shall be paid by the purchaser of the property as soon as the sale is completed.

(5)     When a sale of immovable property is set aside under sub-rule (2) of rule 63 of the principal rules, the Tax Recovery Officer may make an order for payment, by the defaulter or by the person at whose instance the sale is set aside, of the poundage fees paid by the purchaser of the property under sub-rule (1), read with sub-rule (4), of this rule.

Rule - 57. Copying fees.

(1)     Except in cases where copies are supplied free under rules or instructions in force, copying fees shall be charged for supplying a copy of any document as follows:

(a)      for the first 200 words or less Re. 1.00;

(b)      for every additional 100 words or fraction thereof, 50 paise.

(2)     Copying fees shall be payable in advance.

(3)     The scale of fees to be charged for the supply of a copy urgently shall be twice those prescribed in sub-rule (1).

Rule - 58. Inspection fees.

(1)     Fees for inspecting records of proceedings before the appellate authority or the Tax Recovery Officer under the principal rules shall, where such inspection is permitted, be charged as follows:

(a)      for the first hour or part thereof, Re. 1.00;

(b)      for every additional hour or part thereof, 50 paise.

(2)     Fees for inspection shall be payable in advance.

PART XI Miscellaneous

Rule - 59. Proceedings against legal representatives of a deceased defaulter.

A notice to the legal representative of a deceased defaulter under rule 86 read with rule 2, of the principal rules shall be issued in Form No. V.A.T.C.P. 29 which may be so varied as the circumstances of each case may require.

Rule - 60. Recovery from surety.

A notice to a surety under rule 89, read with rule 2, of the principal rules shall be issued in Form No. V.A.T.C.P. 31 which may be so varied as the circumstances of each case may require.

Rule - 61. Appearance before the Tax Recovery Officer.

(1)     Any person who is entitled or required to attend before any appellate authority or Tax Recovery Officer in connection with any proceedings under the Schedule F or these rules, otherwise than when required under rule 84 of the principal rules to attend personally for examination on oath or affirmation, may attend either in person or by an authorised agent.

Explanation. For the purposes of this sub-rule, "agent" shall have the meaning assigned to it in clause (a) of sub-rule (1) of rule 2 of the West Bengal Value Added Tax Rules, 2005.

(2)     In any proceedings before the appellate authority or the Tax Recovery Officer referred to in sub-rule (1), the requiring officer concerned shall have the right to be heard either in person or by a representative.