2019 (9) TMI 707 - HC - Service Tax

Recovery of Service Tax - Post GST - proviso to section 73(1) of the Finance Act, 1994 (Finance Act) read with sections 142 and 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT - We are not inclined to entertain this petition as only show-cause-notice is issued which involves investigation into facts. It is appropriate that the Petitioner responds to the same on merits and also bring to the notice of the Adjudicating Authority the decisions which, according to the Petitioner would conclude the issue in its favour. It would be open for the Adjudicating Authority to consider the issue of limitation, merits and all other submissions made by the parties - petition dismissed.

Summary

Issues involved:
Challenge to show-cause notice for recovery of service tax, validity of section 66E(b) of the Act, challenge to notification No.26/12, contention of time-barred notice, assessment of loan as outside tax consideration.

Analysis:

1. Challenge to show-cause notice for recovery of service tax: The petition under Article 226 challenges a show-cause notice issued by the Joint Director General of Goods and Service Tax Intelligence, seeking recovery of service tax not paid by the Petitioner during a specified period. The notice invokes provisions of the Finance Act and the Central Goods and Services Tax Act. The Petitioner contests the notice on grounds of being time-barred and on the merits of the assessment, arguing that the transaction in question is a loan and not subject to taxation for services provided. The court notes that these issues require investigation into facts best adjudicated before the Authority.

2. Validity of section 66E(b) of the Act: The petition also challenges the validity of section 66E(b) of the Act, contending that it is deficient due to the absence of machinery provision. This challenge is made in the context of the impugned notice and the related tax liability. The court, however, emphasizes that the primary issue at hand is the determination of facts regarding the transaction in question, making challenges to specific provisions premature at this stage.

3. Challenge to notification No.26/12: Another aspect of the petition challenges notification No.26/12, as amended, on the grounds that it fails to provide the necessary valuation methodology for services related to construction of complex/building. The Petitioner argues that this deficiency renders the notice invalid and without jurisdiction. However, the court dismisses this challenge, emphasizing the need for factual determination before addressing ancillary issues.

4. Contention of time-barred notice and assessment of loan: The Petitioner's contention that the impugned notice is time-barred and that the transaction in question involves a loan rather than a taxable service is a critical aspect of the case. The court acknowledges these contentions but directs the Petitioner to respond to the notice on merits and present relevant arguments before the Adjudicating Authority for a comprehensive evaluation of the issues raised.

In conclusion, the High Court dismisses the petition at this stage, highlighting the need for factual determination and adjudication by the appropriate authority to address the complex issues raised regarding the tax liability, validity of provisions, and challenges to notifications. The court underscores the importance of allowing due process and investigation into facts before ruling on the various legal contentions presented in the petition.