2018 (5) TMI 1239 - HC - Service Tax

Demand of service tax - proceeds from sale of food and beverages at the premises of the hotel of the petitioner on which value added tax liability has been discharged - validity of SCN - Held that - as it is made clear in the notice itself that further proceedings pursuant to the show cause notice will be subject to the outcome of the decision of the Apex Court in the matter pending before it as referred to in the notice fairness demands that the petitioner be given a further notice before action is initiated against them in the event of the Apex Court taking a decision favourable to the Department - petition disposed off.

Summary

Issues:
Challenge to Ext.P3 notice demanding service tax on sale of food and beverages, Constitutional validity of levy of service tax on services, Challenge to notification on levy of service tax on accommodation charges, Challenge to Section 67 of Finance Act, 1994.

Analysis:
The petitioner, a hotelier, challenged Ext.P3 notice demanding service tax on proceeds from food and beverages sales where VAT was already paid. The challenge also included the constitutional validity of service tax on services under 'taxes on luxuries' and 'taxes on sale or purchase of goods'. Additionally, the petitioner questioned the definition of 'service' under Section 65(B)(44) of the Finance Act, 1994. The petitioner also contested the notification imposing service tax on 60% of accommodation charges and Section 67 of the Finance Act, 1994 for not allowing deduction of transactions already subjected to VAT.

In a related case, a Division Bench held that Parliament lacked legislative competence to levy service tax on restaurants and hotels, as it falls under State jurisdiction. The petitioner's challenge was based on this decision.

The Department issued Ext.P3 notice pending a Special Leave Petition before the Apex Court against the Division Bench decision. The notice aimed to protect the Department's interest pending the Apex Court's decision. Despite stating that further action would depend on the Apex Court's decision, the notice required the petitioner to respond within thirty days. The petitioner argued they had no choice but to challenge the notice.

The Court ruled that further proceedings based on Ext.P3 notice would be deferred until the Apex Court's decision. If the Apex Court ruled in favor of the Department, the petitioner would have the opportunity to submit additional objections and be heard before final orders were passed on Ext.P3. Fairness demanded a new notice before any action if the Apex Court favored the Department.

In conclusion, the Court directed that proceedings based on Ext.P3 notice would be on hold until the Apex Court's decision. If the Apex Court ruled in favor of the Department, the petitioner would have a chance to present additional objections and be heard before final orders were issued.