2019 (1) TMI 75 - HC - Service Tax

Extended period of limitation - Commercial coaching services - sheet-anchor of the petitioner academy s case is that the department could not have invoked the extended period of limitation as it obtained registration in the year 2012 and filed a nil return claiming the benefit of exemption under the Notification No.33/2011 dated 25.04.2011 and therefore, the authorities are presumed to be aware of its activities and cannot claim ignorance or attribute suppression to it. Held that - The mere factum of filing a nil return, followed by cancellation of the registration, speaks more of the premeditated acts of the petitioner academy and do not disclose any bonafides on its part. The full facts were never presented to the department whereby the petitioner academy could claim such benefit in the context of the limitation period. The actual transaction between the petitioner academy and the society only came to light after investigation by the authorities and therefore, the authorities were justified in invoking the extended period of five years limitation. The convoluted scheme in the form of the MoU dated 01.04.2009 adopted by the petitioner academy and the society, two separate legal entities, manned by one single individual, A.Rajendra Prasad, essentially seems to have been directed at avoiding tax liability but in effect, it amounted to evasion of tax, which is per se illegal. The manner in which the petitioner academy and the society went about the transaction manifests in no uncertain terms that the intention was to evade tax - the desperate ploy of the petitioner academy in its reply affidavit to completely disown its coaching activity for entrance exams clearly highlights its lack of bonafides and its real intention. That being so, the question of giving it the benefit of the normal limitation period would not arise. In the case on hand, the mere factum of the petitioner academy obtaining registration and filing a nil return followed by cancellation of the registration seems to be a self-serving act for the purpose of warding off extended period of limitation at a later point of time. This premeditated act on the part of the petitioner academy was only to present a fait accompli and there is no indication of the full facts, including the existence of the MoU, having been disclosed by the petitioner academy at that point of time. When the authorities did not have the complete facts before them, a presumption that they were aware of the core activity of the petitioner academy, i.e., coaching for entrance examinations, would not arise. Invocation of the extended period of limitation was therefore justified. Inclusion of non-includables in the taxable services - It was also contended by appellant that non-includable items were also brought within the ambit of taxable services - Held that - Separate heads were not shown in the invoices under which fees were collected by the petitioner academy, whereby students were made aware of how much they were paying for the coaching and how much they were paying for other services, such as transportation, snacks, etc. These were straightaway shown as expenditure by the petitioner academy and claimed as such. The Commissioner opined that when there was no separate receipt towards each head and what was collected was fees alone, the petitioner academy could not thereafter claim deductibles from such fees by showing such self-serving and unauthenticated expenditure. The amounts claimed towards expenditure under various heads by the petitioner academy cannot be tested by this Court and, therefore, even if they are liable to be excluded from the amount received towards the taxable services, such an exercise would not fall within the realm of this writ petition. Thus, this Court finds that invocation of the extended period of limitation was justified on facts. The coaching services rendered by the petitioner academy were taxable under the service tax regime and were not covered by the exemptions, be it under the Notifications or the Act of 1994 - As regards the alleged inclusion of non-includables in the taxable services, the same is beyond the purview of a writ petition involving factual verification which this Court cannot undertake. Petition dismissed - decided against petitioner.

Issues Involved:
1. Validity of the Order-in-Original dated 29.11.2016.
2. Applicability of Service Tax on the petitioner academy's activities.
3. Invocation of the extended period of limitation under Section 73(1) of the Finance Act, 1994.
4. Exemption claims under Notification No.10/2003 and Notification No.33/2011.
5. Distinction between coaching for Intermediate curriculum and coaching for competitive exams.
6. Alleged suppression of facts and evasion of Service Tax.
7. Jurisdiction of the High Court under Article 226 of the Constitution.

Detailed Analysis:

1. Validity of the Order-in-Original dated 29.11.2016:
The petitioner academy challenged the Order-in-Original dated 29.11.2016 passed by the Commissioner, Central Excise, Customs and Service Tax, Guntur, Andhra Pradesh, requiring it to pay ? 53,94,36,220/- towards service tax, with interest and penalties. The court upheld the order, dismissing the writ petition and all pending miscellaneous petitions.

2. Applicability of Service Tax:
The petitioner academy argued that it was not providing commercial coaching or training but only imparting education in the Intermediate curriculum. However, the court found that the petitioner academy was indeed providing taxable services of commercial coaching for competitive exams like IIT JEE, BITSAT, EAMCET, etc., which did not result in any degree, diploma, or certificate recognized by law. Therefore, the petitioner academy's activities fell within the ambit of 'commercial training or coaching' under Sections 65(26) and 65(27) of the Finance Act, 1994.

3. Invocation of the Extended Period of Limitation:
The petitioner academy contended that the show-cause notice dated 17.04.2015 was issued beyond the normal period of limitation and was unsustainable. The court found that the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994, was rightly invoked due to the conscious intention of the petitioner academy to evade payment of service tax by not disclosing full facts to the department.

4. Exemption Claims:
The petitioner academy claimed exemptions under Notification No.10/2003 and Notification No.33/2011. The court held that the petitioner academy could not claim exemption under Notification No.10/2003 as it directly received fees from the students, and the exemption under Notification No.33/2011 did not apply as the coaching did not lead to any recognized educational qualification. The court also noted that these notifications were withdrawn with effect from 01.07.2012.

5. Distinction Between Coaching for Intermediate Curriculum and Competitive Exams:
The court found that the petitioner academy and the society collected separate fees for Intermediate curriculum and specialized coaching for competitive exams. The court rejected the argument that the coaching for Intermediate curriculum and competitive exams could not be distinguished or delineated.

6. Alleged Suppression of Facts:
The court noted that the petitioner academy suppressed material facts and acted with the conscious intention of evading payment of service tax. The petitioner academy's actions, including obtaining and quickly surrendering service tax registration and filing a 'nil' return, were found to be premeditated acts to avoid tax liability.

7. Jurisdiction of the High Court:
The court acknowledged that while an appellate remedy was available, it chose to entertain the writ petition due to the issue of limitation, which went to the root of the matter. However, the court emphasized that its scope of judicial review was limited compared to the wider scope of appellate jurisdiction.

Conclusion:
The court dismissed the writ petition, upholding the Order-in-Original dated 29.11.2016, and found that the petitioner academy's coaching services were taxable under the service tax regime. The invocation of the extended period of limitation was justified, and the petitioner academy was not entitled to any exemptions under the cited notifications. The court also noted that the factual aspects regarding the inclusion of non-includable items in taxable services were beyond the purview of the writ petition.

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