2010 (1) TMI 217 - HC - Service Tax

Scope of Show Cause Notice - SCN issued based on Audit Objection - Assessee (Petitioner) contented that it is in violation of principles of natural justice, since, when the second respondent had sent a communication on 21-5-2009 directing the petitioner to submit his reply to audit report, the petitioner promptly responded to the same on 25-6-2009 and without conducting any further enquiry the first respondent has issued the show cause notice. The other ground of attack is that the authority has already pre-decided the issue and the learned counsel relied upon the findings in paragraph 3 of the show cause notice, and submitted that the tax has already been quantified which shows that the show cause notice is an empty formality - Held that u/s 73, the officer demanding service tax is required to issue a show cause notice on the person calling upon him to show cause why he should not pay the amount specified in the notice. Therefore, the quantification of the tax in the show cause notice is a statutory requirement and cannot be stated that the authority has pre-decided the issue - writ petition against issuance of SCN dismissed

Summary

Issues:
Challenge to show cause notice on grounds of violation of natural justice and pre-determination of liability.

Analysis:
The petitioner sought to quash a show cause notice demanding service tax for a specific period under the Finance Act, 1994, along with interest and penalties. The challenge was based on two primary grounds: violation of natural justice and pre-determination of liability. The petitioner argued that the show cause notice was issued without further inquiry after a prompt response to an earlier communication. Additionally, it was contended that the authority had already pre-decided the issue, making the notice a mere formality.

The petitioner relied on a Supreme Court decision to support the maintainability of the writ petition against a show cause notice where the liability had been determined by the respondent. However, upon examining the impugned show cause notice, the court found that it detailed the audit findings, the petitioner's denial of liability, and the reasons why the authority believed the denial was not tenable. The notice provided an opportunity for the petitioner to respond to the allegations and the computed tax amount, as required by Section 73 of the Finance Act.

The court noted that the quantification of tax in the show cause notice was a statutory requirement and did not indicate pre-determination of the issue by the authority. It emphasized that the question of invoking the extended period for tax demand was a factual matter best left for the adjudicating authority to decide based on the petitioner's response and supporting documents. The court concluded that the Supreme Court decision cited by the petitioner did not apply to the present case, and issues related to the extended period could not be addressed in a writ petition under Article 226 of the Constitution.

Ultimately, the court dismissed the writ petition, finding no grounds to quash the show cause notice. However, it granted the petitioner an additional 30 days to submit an explanation in response to the notice. The first respondent was directed to adjudicate the case on its merits and in accordance with the law after considering the petitioner's submission. No costs were awarded, and the connected miscellaneous petition was closed.