2015 (3) TMI 1246 - HC - Service Tax

Jurisdiction of Superintendent Service Tax Range to demand tax - Commercial or Industrial Construction Service - sub-clause (zzq) and (zzd) of clause (105) of Section 65 of the Finance Act - Held that - There is no inherent lack of jurisdiction. Whether service tax is payable or not has to be decided by the Assessing Authority. Such Assessing Authority can also decide whether the charging provision has in fact been enforced or not. The Assessing Authority can also decide whether any exemption has been made and the petitioner is exempted from payment of tax. The Assessing Authority like any other judicial or quasi-judicial authority also has the right to decide on its own jurisdiction - petition rejected - decided against petitioner.

Summary

Issues:
Jurisdiction of the Superintendent, Service Tax Range to issue notice based on sub-clauses (zzq) and (zzd) of clause (105) of Section 65 of the Finance Act; Applicability of notification dated 22-05-2007 exempting commercial or industrial construction service; Need for the petitioner to approach the Assessing Authority for dispute resolution; Authority of the Assessing Authority to decide on service tax liability, enforcement of charging provision, exemptions, and jurisdiction.

Analysis:
The petitioner challenged a notice dated 05-11-2009 from the Deputy Commissioner, Central Excise and Service Tax Division, regarding the payment of Service Tax on Commercial or Industrial Construction Service provided to a specific entity. The petitioner contended that sub-clauses (zzq) and (zzd) of clause (105) of Section 65 of the Finance Act were not enforced, questioning the jurisdiction of the Superintendent, Service Tax Range to issue the notice. Additionally, the petitioner's counsel referred to a notification dated 22-05-2007 exempting certain contracts related to commercial or industrial construction services under sub-clause (zzq).

The court emphasized that the petitioner should first approach the Assessing Authority to resolve the dispute and determine the liability for service tax. The court clarified that the Assessing Authority holds the power to decide on the enforcement of charging provisions, exemptions, and jurisdiction. The court highlighted that the Assessing Authority, similar to other judicial or quasi-judicial bodies, possesses the authority to independently determine its jurisdiction and decide on tax liabilities.

As a result, the court disposed of the petition without delving into the case's merits. The court directed the petitioner to respond to the notice within three weeks and instructed the Assessing Authority to resolve the dispute promptly, ensuring a decision within three months of receiving the petitioner's reply.