Section 76. Tax collected but not paid to Government.-
(1) Notwithstanding anything to the contrary contained
in any order or direction of any Appellate Authority or Appellate Tribunal or
court or in any other provisions of this Act or the rules made thereunder or
any other law for the time being in force, every person who has collected from
any other person any amount as representing the tax under this Act, and has not
paid the said amount to the Government, shall forthwith pay the said amount to
the Government, irrespective of whether the supplies in respect of which such
amount was collected are taxable or not.
(2) Where any amount is required to be paid to the
Government under sub-section (1), and which has not been so paid, the proper
officer may serve on the person liable to pay such amount a notice requiring
him to show cause as to why the said amount as specified in the notice, should
not be paid by him to the Government and why a penalty equivalent to the amount
specified in the notice should not be imposed on him under the provisions of
this Act.
(3) The proper officer shall, after considering the
representation, if any, made by the person on whom the notice is served under
sub-section (2), determine the amount due from such person and thereupon such
person shall pay the amount so determined.
(4) The person referred to in sub-section (1) shall in
addition to paying the amount referred to in sub-section (1) or sub-section (3)
also be liable to pay interest thereon at the rate specified under section 50
from the date such amount was collected by him to the date such amount is paid
by him to the Government.
(5) An opportunity of hearing shall be granted where a
request is received in writing from the person to whom the notice was issued to
show cause.
(6) The proper officer shall issue an order within one
year from the date of issue of the notice.
(7) Where the issuance of order is stayed by an order
of the court or Appellate Tribunal, the period of such stay shall be excluded
in computing the period of one year.
(8) The proper officer, in his order, shall set out
the relevant facts and the basis of his decision.
(9) The amount paid to the Government under
sub-section (1) or sub-section (3) shall be adjusted against the tax payable,
if any, by the person in relation to the supplies referred to in sub-section
(1).
(10) Where any surplus is left after the adjustment
under sub-section (9), the amount of such surplus shall either be credited to
the Fund or refunded to the person who has borne the incidence of such amount.
(11) The person who has borne the incidence of the
amount, may apply for the refund of the same in accordance with the provisions
of section 54.
