9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (8) TMI 1441 - HC - Service TaxTime Limitation - Classification of Services - CESTAT expressed opinion that the Assessing Authority could have demanded service tax from the respondent only for the period of one year immediately preceding the show cause notice and the demand for the rest of the earlier periods is barred by limitation - Whether the Tribunal is justified in holding that the demand was time barred despite the fact that there was suppression of fact and extended period of limitation was correctly invoked by Adjudicating Authority? Held that - Section 73 of FA, states that the period of limitation for issuing notice to show cause why service tax should be not paid or realised is dependant upon the omission or failure on the part of the assessee in filing the return u/s 70 of the Act is five years from the relevant date. The bonafides of the assessee or any confusion or difference in opinion as to the categorisation of the service are not at all relevant factors for the purposes of issuing notice under the aforesaid provision. The only thing that is relevant is omission to file return - In the case at hand, it is admitted on record that the respondent had not got itself registered and had failed to file return within the prescribed period of time. Thus, the period for issuing notice u/s 70 of the Act is five years on account of non-filing of the return. Te show cause notice dated 31.01.2003 issued by the Assesssing Authority for the period 01.01.2000 to 30.09.2002 was in no way barred by limitation - appeal allowed - decided in favor of Revenue.
Issues:
1. Interpretation of the period of limitation for demanding service tax. 2. Whether the demand for service tax was time-barred due to the period of limitation. 3. Applicability of extended period of limitation in case of failure to file a return under the Act. 4. Consideration of suppression of facts in determining the period of limitation. Analysis: 1. The case involved a dispute regarding the period of limitation for demanding service tax for the period from 01.01.2000 to 30.09.2002. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the order of the Commissioner (Appeals) regarding the nature of services provided by the respondent as that of a management consultant. 2. The main contention was whether the demand for service tax was time-barred. The CESTAT opined that the demand for the period beyond one year preceding the show cause notice was barred by limitation. However, the appellant argued that the period of limitation could be extended to five years in cases of failure to file a return under the Act. 3. Section 73 of the Act provided the relevant provisions for issuing a notice in case of omission or failure to file a return under section 70. The period of limitation for issuing a notice to show cause for non-payment of service tax due to failure in filing the return was five years from the relevant date. 4. The court emphasized that the period of limitation for demanding service tax is dependent solely on the omission to file a return under the Act. The bonafides of the assessee or any confusion regarding the categorization of services are irrelevant factors for determining the period of limitation. In this case, since the respondent had not registered or filed a return within the prescribed period, the period for issuing a notice under section 70 was five years. 5. Therefore, the court held that the demand for service tax was not time-barred, except for the preceding one year. The CESTAT's decision to consider differences in interpretation of the law for classifying services as a reason for not invoking the extended jurisdiction was deemed irrelevant. The court set aside the impugned order of the Tribunal and allowed the appeal in favor of the Department.
|
