2022 (1) TMI 209 - HC - Service Tax

Condonation of delay in filing appeal - overcoming the statutory period of limitation - seeking to recover service tax and penalty - Sabka Vishwas (Legacy Dispute Resolution) Scheme - Section 125 of the Finance Act, 1994 - HELD THAT - By virtue of the orders of the Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2021 (11) TMI 387 - SC ORDER , the period of limitation for filing appeals stands condoned till 02.10.2021 from 15.03.2020. Therefore, petitioner can prefer an appeal against the order in original dated 27.11.2020 under Section 85 of the Finance Act, 1994; by seeking condonation of delay from 27.11.2020 till 02.10.2021. Petitioner has been contesting this writ petition from 12.10.2021 onwards. The period during which this writ petition has been pending from 12.10.2021 till today, can also be excluded while calculating the period of limitation. This Court is of the opinion that, the remedy of an appeal available to the petitioner must be pursued and, irrespective of whether the petitioner was served with the earlier order dated 27.11.2020; or not no prejudice will be caused to the respondents, if the petitioner is served with a fresh certified copy of the order in original in a time bound manner - In order to enable the petitioner to prefer an appeal against the order in original, the period spent by the petitioner in pursuing this writ petition from 12.10.2021, till the date of judgment shall stand excluded for the purpose of calculating the period of limitation, apart from the period from 26.11.2020 till 02.10.2021. Petition disposed off.

Summary

Issues:
Challenge against show cause notice and demand notice for service tax and penalty. Dispute regarding service tax registration exemption. Discrepancy in payment records leading to notices. Discrepancy in tax dues calculation. Dispute over the service of the order in original. Calculation of the period of limitation for filing appeals.

1. Challenge against show cause notice and demand notice for service tax and penalty:
The petitioner challenged Exts.P2 show cause notice and Ext.P9 demand notice seeking to recover service tax and penalty. The petitioner, engaged in tile laying works, claimed exemption from service tax registration as a small scale service provider but had registered under the GST regime. The notices were issued based on a payment of over &8377; 20,00,000 made to the petitioner in 2015-2016.

2. Dispute regarding service tax registration exemption:
The petitioner claimed to be exempt from service tax registration as a small scale service provider but had registered under the GST regime. This discrepancy raised issues regarding the petitioner's liability for service tax and penalty.

3. Discrepancy in payment records leading to notices:
During an audit of another assessee, a payment of over &8377; 20,00,000 to the petitioner in 2015-2016 was discovered, leading to the issuance of notices to the petitioner. The petitioner had also availed the benefit of the Sabka Vishwas Scheme for tax dispute resolution.

4. Discrepancy in tax dues calculation:
After availing the Sabka Vishwas Scheme and settling tax dues, the petitioner received a communication demanding an additional amount. The petitioner contested the existence of an order in original dated 27.11.2020, which was allegedly served late, affecting the petitioner's right to appeal.

5. Dispute over the service of the order in original:
The petitioner disputed the service of the order in original dated 27.11.2020, crucial for initiating an appeal. The respondents claimed the order was served on 08.12.2020, while the petitioner alleged non-receipt to overcome the statutory period of limitation.

6. Calculation of the period of limitation for filing appeals:
Considering the Supreme Court's orders on the extension of limitation due to the pandemic, the court allowed the petitioner to file an appeal against the order in original dated 27.11.2020 by seeking condonation of delay. The period spent on the writ petition was excluded from the limitation calculation.

In conclusion, the court directed the 1st respondent to provide a certified copy of the order in original to the petitioner within seven days and kept coercive proceedings in abeyance for ten days. The writ petition was disposed of, emphasizing the need for the petitioner to pursue the appeal remedy despite the service dispute.