2023 (7) TMI 110 - HC - Service Tax

Adjudication of show cause notice after much delay from the date of personal hearing - Construction of residential complex - quantification of the receipts offered towards construction - HELD THAT - Department contended that, the onset of GST had itself brought with it, several difficulties including integration with technology and streamlining of processes, and hence all officers were required to address the difficulties on a real-time basis. This is what had led to the delay in adjudication. They would point out that this was not a case where the delay had been either wanton or wilfull, but the officer had been truly burdened with the pressure of work. On the ground of bar of limitation of delay in adjudication, I would agree with the petitioner that the reasons assigned for such delay on the part of the Department do not justify the same. However, in deciding matter whether such delay is fatal to the proceedings, it is urged that the Court take note of the merits of the issues as well. Suppression of Receipts - HELD THAT - In the case of the first petitioner the issue that arose on merits related to the quantification of the receipts offered towards construction. The first petitioner, had entered into construction agreements, which were not required to be registered at that point in time and were, hence, unregistered-Registered sale deeds were executed - While the construction agreement reflected the value of the land as 'X', the registered sale deed reflects an amount less than 'X'. According to the Department, the difference between X and Y, in fact, represents receipts from construction services hitherto suppressed and hence, such alleged suppressed receipts were brought to tax. In arriving at this conclusion, the assessing authority has compared the value of land as adopted under the construction agreement and that, as adopted in the registered sale deeds. In the reply filed, the submission of the petitioners is legalistic, to state that land value could not be presumed to be suppressed receipts from construction services. While theoretically, the petitioner may be right, it is the case of the assessing officer that the veil is to be lifted and the true receipts from the constructions are to be determined. The response of the assessee does not reveal any satisfactory explanation in regard to the difference in land cost vis-a-vis the construction agreement and sale deeds. Works contract service - classification of services - HELD THAT - As far as the case of the second petitioner is concerned, its case is that the classification of the service is itself incorrect and that the petitioner had constructed only individual villas, the receipts from which would not be amenable to tax at all. It has relied upon the judgment of the Hon'ble Supreme court in the case of Macro Marvel Projects Ltd v Commissioner of Service Tax 2008 (9) TMI 80 - CESTAT, CHENNAI as well as other judgments that according to it, have not been considered in proper perspective. For the above reasons, and on a consideration of the rival contentions, the impugned order is set aside and this matter is remitted to the file of the respondent for de novo consideration as well. Petition disposed off.

Summary

Issues Involved:
The legal issue involves the undue delay in adjudication between the issuance of show cause notices and passing of the impugned orders in two writ petitions related to service tax assessment for construction companies.

Details of Judgment:

Issue 1: Delay in Adjudication
- Show cause notices issued for different periods to two construction companies.
- Personal hearings conducted before the onset of Goods and Service Tax (GST) regime.
- Orders passed without personal hearing proximate to the impugned orders.
- Petitioners argue undue delay in adjudication affecting decision-making process.
- Reference to a Supreme Court judgment emphasizing timely delivery of judgments.
- Petitioners rely on Finance Act, 1994 provisions for time frame in adjudication.
- Citing a Delhi High Court decision on the importance of reasonable adjudication timelines.
- Circulars emphasizing timely adjudication by the Board and the Government.
- Respondents defend orders, attributing delay to challenges post-GST implementation.
- Acknowledgment of lack of personal hearing before passing impugned orders.

Issue 2: Merits of Assessment
- First petitioner's case involves quantification of receipts from construction services.
- Discrepancy between land value in construction agreement and registered sale deeds.
- Department alleges suppressed receipts from construction services.
- Second petitioner disputes classification of service and applicability of tax on villa construction.
- Reference to relevant judgments supporting second petitioner's arguments.
- Impugned orders set aside for both petitioners, matter remitted for fresh consideration.

Separate Judgment:
- Legacy matters related to service tax remitted for de novo consideration.
- Date of hearing set for petitioners to appear with responses.
- Orders to be passed within four weeks from the hearing date.
- Warning of consequences if orders are not passed within the specified timeline.

Conclusion:
The court disposed of both writ petitions without costs, emphasizing timely adjudication and remanding the matters for fresh consideration within a specified timeframe.