2021 (6) TMI 956 - HC - Service Tax

Validity of SCN - challenge on the ground that as per Section 73(4B) of the Finance Act, 1994, the period given for passing the order has expired - Section 73(4B) of the Finance Act, 1994 - HELD THAT - The learned counsel for the respondents tried to justify the delay. The issue has yet not been raised before the Authority and otherwise could have been after a notice for hearing. Accordingly, it is found appropriate to first relegate the petitioner to the Authority concerned where he can raise the objection in reference to Section 73(4B) of the Act, 1994. On raising such objection within one month, the Authority concerned is directed to first decide the issue in reference to Section 73(4B) of the Act. 1994. The decision of the issue would be by a speaking order and without bias. Petition disposed off.

Summary

Issues:
Challenge to notice calling for hearing after expiry of the period under Section 73(4B) of the Finance Act, 1994.

Analysis:
The writ petition was filed to challenge a notice calling the petitioner for a hearing, dated 17.02.2021, based on a previous show cause notice from 13.03.2013. The petitioner contended that the respondents could not take up the matter for hearing after the expiry of the period specified in Section 73(4B) of the Finance Act, 1994. Section 73(4B) mandates the determination of service tax within specific timeframes, i.e., six months from the date of notice for cases falling under sub-section (1) and one year for cases under the provisos. The petitioner argued that the notice for hearing did not provide reasons for the delay in determining the service tax within the stipulated timeframes.

The counsel for the respondents attempted to justify the delay, but the issue regarding the time limit specified in Section 73(4B) had not been raised before the Authority. Therefore, the court decided to relegate the petitioner to the concerned Authority to raise the objection within one month regarding the violation of Section 73(4B) of the Act, 1994. The Authority was directed to decide the issue by issuing a speaking order without bias, strictly adhering to the provisions of the Act, 1994. The court emphasized that the decision should be made in accordance with the law, and the appropriate order should be passed by the Authority.

In conclusion, the court disposed of the writ petition by directing the petitioner to raise the objection before the Authority concerning the violation of Section 73(4B) of the Finance Act, 1994. The Authority was instructed to decide the issue impartially and in compliance with the relevant legal provisions, emphasizing the importance of issuing a speaking order.