2014 (5) TMI 460 - HC - Service Tax

Demand (Service tax )- management services - scope of the show cause notice - Demand of service tax for prior period according to the provision which were deleted later Held that - as culled out above that what was proposed was to impose Service Tax amount of Rs. 90,96,501/- u/s 73(1)(a) of the Finance Act. In view of the explanation submitted in response to the show cause notice, the original authority held that the tax could not have been leviable under the said Act u/s 73(1)(a). However, the original authority proceeded to impose the tax under the head Business Auxiliary Service which is taxable u/s 73(1)(d) and 73(1)(e). The fact that there was no proposal in the show cause notice to include the income as auxiliary business service is indisputable in view of the contents of the show cause notice and therefore in the absence of any notice issued to the respondent in view of the provisions of Section 73, it is clear that imposition of tax and consequently interest and penalty cannot be sustained and the same has been rightly set aside by the Tribunal. As no order to treat the income as Business Auxiliary Service had been passed without proposing the same to the respondent in the show cause notice, the order passed by the Tribunal is justified and substantial question of law has to be answered against the revenue. - Decided against Revenue.

Summary

Issues:
1. Discrepancy in the proposed and final order regarding the classification of income under the Finance Act.
2. Imposition of Service Tax on income without proper notice.
3. Interpretation of Section 73 of the Finance Act.

Analysis:

Issue 1: Discrepancy in proposed and final order
The appeal was filed by the revenue against the order of the Central Excise and Service Tax Appellate Tribunal, wherein the appeal by the assessee was allowed. The Tribunal found that the show cause notice proposed to include income under management services u/s 73 of the Finance Act, but the final order treated income not covered in the notice. The Tribunal held that the order was not sustainable, allowing the appeal by the assessee.

Issue 2: Imposition of Service Tax without proper notice
A show cause notice was issued to the respondent, alleging non-payment of Service Tax on various taxable services. The respondent contended that they were not providing management services as mentioned in the notice. The original authority imposed tax, interest, and penalty on auxiliary services, contrary to the proposal in the show cause notice. The Tribunal upheld the respondent's contention, setting aside the order-in-original, as the notice did not include the income towards auxiliary charges.

Issue 3: Interpretation of Section 73 of the Finance Act
The substantial questions of law considered by the High Court included whether the Assessing Authority can confirm demands under a different heading than alleged in the show cause notice. The Court observed that the imposition of tax under a different category without proper notice was not justified. The Court emphasized that the absence of a proposal in the show cause notice to include income as Business Auxiliary Service rendered the imposition of tax, interest, and penalty unsustainable. The Court dismissed the appeal, holding that the Tribunal's decision was justified based on the provisions of Section 73 of the Finance Act.

In conclusion, the High Court dismissed the appeal, emphasizing the importance of proper notice and adherence to the provisions of the Finance Act in imposing taxes. The judgment highlighted the significance of clarity in show cause notices and the necessity to follow due process in tax assessments.