2018 (9) TMI 92 - HC - Service Tax

Service Tax Audit - Vires of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 - declaration is sought that sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 is arbitrary and in conflict with provisions of Section 72A of the Finance Act, 1994. Held that - Since sub-rule 2 of Rule 5A of the Service Tax Rules, 1994, as substituted by notification dated December 25, 2014 was declared ultra vires by Mega Cabs Pvt. Ltd. 2016 (6) TMI 163 - DELHI HIGH COURT , it would be appropriate to grant interim stay of the proceedings. Such stay will continue till November 30, 2018 or until further orders whichever is earlier.

Summary

Issues:
1. Declaration sought regarding the arbitrariness of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994.
2. Declaration sought regarding the conflict with provisions of Section 72A of the Finance Act, 1994.
3. Declaration sought regarding the unguided nature of provisions of clause (k) of subsection (2) of Section 94 of the Finance Act, 1994.
4. Challenge against a notice dated February 16, 2015.

Analysis:
1. The petitioner challenges sub-rule (2) of Rule 5A of the Service Tax Rules, 1994, substituted by notification no. 23/24/ST dated December 25, 2014, alleging arbitrariness. The petitioner argues that this provision is in conflict with Section 72A of the Finance Act, 1994. The petitioner contends that the Delhi High Court previously held similar provisions to be ultra vires in Travelite (India) Vs. Union of India (2014). An appeal against this decision is pending before the Supreme Court. The petitioner asserts that the impugned provisions were also struck down by the Delhi High Court in Mega Cabs Pvt. Ltd. Vs. Union of India (2016). The petitioner seeks the quashing of a notice issued based on these provisions.

2. The petitioner further challenges the unguided nature of clause (k) of subsection (2) of Section 94 of the Finance Act, 1994, arguing that it provides uncontrolled power of delegation. The petitioner seeks a declaration regarding the validity of this provision. The Additional Solicitor General appearing for the respondent no.1 requests direction for filing affidavits. Considering the previous decision of the Delhi High Court declaring the impugned sub-rule as ultra vires, the court deems it appropriate to grant an interim stay of proceedings until November 30, 2018, or until further orders, whichever is earlier.

3. The court orders the respondent to file an affidavit-in-opposition within four weeks and allows a two-week period for a reply to be filed thereafter. The writ petition is listed for hearing under the heading "For Hearing" in the monthly list of November 2018. The court also directs that urgent website certified copies of the order be made available to the parties upon completion of the necessary formalities.