2017 (7) TMI 905 - HC - Service Tax

Works contract - subcontractor of a principal contractor who was involved in construction activity - Held that - the matter revolves around the proper application of Section 73 of the Finance Act, 1994. That provision opens up by prescribing a period of 18 months to carry out the process which is authorised thereby. This is part of the fundamental contents of sub-section (1) of Section 73 of the Finance Act, 1994. A survey of the different components of Section 73(1) would clearly show that action could follow within the limit of time prescribed under that sub-section only on the existence of the vitiating elements which are enumerated therein. No such ground has been found by the authorities below and the power to invoke Section 73 has not been done within the time prescribed in sub-section (1) thereof which was the only provision which governed the parties at that relevant point of time i.e. to say till the end of the financial year 2007-2008. In this view of the matter, the Appellant is entitled to succeed on this ground as well - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability of main contractor and sub-contractor for service tax on the same service.
2. Justifiability of invoking extended period of limitation under Section 73 of the Finance Act 1994 without finding collusion and suppression.

Analysis:
Issue 1: The case involved the liability of both the main contractor and the sub-contractor for service tax on the same service. The court analyzed the legal framework under Article 366(29A)(b) of the Constitution of India, Section 66 of the Finance Act 1994, and Rule 2A(b) of the Service Tax Valuation Rules 2006. The court considered the nature of works contract and the introduction of service tax on works contract from June 1, 2007, as per the Finance Act 2007. It was established that service tax on indivisible works contract could not have been levied before this date. Therefore, the proceedings for the period before June 1, 2007, were deemed to be without legal sanction, and the impugned decisions were vacated.

Issue 2: The court examined the justifiability of invoking the extended period of limitation under Section 73 of the Finance Act 1994 without establishing collusion and suppression to evade payment of duty. It was noted that for the period from June 1, 2007, to March 31, 2008, the application of Section 73 was crucial. The court emphasized that action under Section 73 could only be taken within the prescribed time limit and based on the vitiating elements specified in the provision. Since no such grounds were found by the authorities within the specified time frame, the court ruled in favor of the appellant. Additionally, the court clarified that the provisions of sub-section 2-A of Section 73 introduced in 2013 were irrelevant to the case at hand as they were not applicable during the relevant period.

In conclusion, the court ruled in favor of the assessee on both issues, setting aside the impugned order and discharging the proceedings initiated as per the show cause notice dated December 10, 2008. The judgment provided a detailed analysis of the legal provisions and their application to the specific circumstances of the case, ultimately leading to a favorable outcome for the appellant.