2020 (9) TMI 356 - HC - Service Tax

Non-payment of Service Tax - Man Power Recruitment and Supply Agency Services - It is the case of the petitioner that the impugned order dated 27th September, 2016 came to be passed by the respondent no.1 in absence of any reply or any evidence being produced by the petitioner - HELD THAT - The petitioner was registered under section 69 pursuant to the Act-1994 for providing Man Power Recruitment and Supply Agency Services . However the petitioner did not file the return in Form ST3 and did not deposit the service tax collected by him from his clients. It was also found by the adjudicating authority on scrutiny of the documents submitted and verified during investigation that the petitioner did not correctly declare his total service amount and purposefully concealed the income from service provided by him. The petitioner also did not furnish service invoice party wise ledge or balance sheet during the investigation and therefore, the adjudicating authority was required to rely upon only tax statement under section 203AA of the Income Tax Act, 1961 i.e. Form 26AS for the period under investigation to find out the actual taxable amount out of the total service income of the petitioner. The petitioner has admitted in the statement recorded under section 14 of the Act-1944 as applicable to service tax law that he did not account the amount of service provided to various customers during the financial year 2010-2011 to 2014-2015 for his service tax liability resulting into evasion of service tax. The writ petition is not maintainable in view of stipulations made by Full Bench and even on merits, the petitioner having not complied with the provisions of the Service Tax Act at any point of time, is not entitled to claim any relief - In facts of the case, as the petitioner has failed to file return of income and failed to deposit the service tax collected by it there was clear intention to evade the tax on behalf of the petitioner. Petition dismissed.

Issues Involved:
1. Maintainability of the writ petition under Article 226 of the Constitution of India.
2. Jurisdiction and authority of the adjudicating officer.
3. Compliance with service tax provisions and exemptions.
4. Calculation and recovery of service tax, interest, and penalties.
5. Petitioner's illness and delay in filing an appeal.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The petitioner filed the writ petition under Articles 226 and 227 of the Constitution of India, challenging the order dated 27.09.2016 by the Additional Commissioner, Central Excise, Customs, and Service Tax, Bharuch. The petitioner claimed the writ petition was maintainable due to his inability to file an appeal within the prescribed period because of prolonged illness. The court issued a notice to consider the maintainability of the petition. The court referred to the Full Bench decision in Panoli Intermediates (India) Pvt Ltd v/s. Union of India, which outlined circumstances under which a writ petition could be entertained, such as lack of jurisdiction, excess of jurisdiction, or violation of principles of natural justice. However, the court found that the impugned order did not fall within these criteria and thus deemed the writ petition not maintainable.

2. Jurisdiction and Authority:
The petitioner argued that the adjudicating authority exercised power in excess of jurisdiction. However, the court found that the adjudicating authority acted within its jurisdiction and followed due process. The petitioner was registered under the relevant provisions for providing "Manpower Recruitment and Supply Agency Services" but failed to comply with service tax obligations. The court concluded that the adjudicating authority did not overstep its jurisdiction.

3. Compliance with Service Tax Provisions and Exemptions:
The petitioner contended that services provided to clients in the Special Economic Zone (SEZ) were exempt from service tax. The respondent argued that the exemption was subject to conditions laid down in notifications, which the petitioner failed to meet. The court found that the petitioner did not provide necessary authorizations or documentary evidence to claim the exemption. The adjudicating authority relied on the petitioner's statement and Form 26AS to determine the taxable amount, as the petitioner did not file required returns or produce invoices.

4. Calculation and Recovery of Service Tax, Interest, and Penalties:
The adjudicating authority calculated the service tax liability based on the income appearing in Form 26AS and found that the petitioner had not paid service tax on the taxable value. The authority confirmed the demand for service tax of ?31,84,804/- and imposed penalties and interest. The court upheld the authority's findings, noting that the petitioner failed to deposit collected service tax and suppressed material facts to evade payment. The court also referred to the Supreme Court decision in Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, emphasizing strict compliance with exemption conditions.

5. Petitioner's Illness and Delay in Filing an Appeal:
The petitioner claimed that prolonged illness prevented him from filing an appeal within the prescribed period. The court examined medical records and found that the petitioner was not incapacitated to the extent claimed and could have taken appropriate action with assistance. The court concluded that the petitioner was negligent and not vigilant in challenging the impugned order.

Conclusion:
The court dismissed the petition, finding it not maintainable under the stipulated criteria and lacking merit. The petitioner failed to comply with service tax provisions, did not meet exemption conditions, and was negligent in challenging the impugned order. The court upheld the adjudicating authority's decision, including the demand for service tax, interest, and penalties.

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