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2022 (1) TMI 1129 - HC - Service TaxValidity of SCN - SCN challenged as having been issued without jurisdiction by wrongly invoking proviso to Section 73 of the Finance Act 1994 - suppression of facts or not - HELD THAT - The petitioner has not explained on facts how the decision in the case of SIMPLEX INFRASTRUCTURES LTD. VERSUS COMMISSIONER OF SERVICE TAX KOLKATA 2016 (4) TMI 548 - CALCUTTA HIGH COURT and provisions of section 73 are not attracted and why no case was made for suppression of facts. It is a matter to be decided on facts based on reply before the adjudicating authority. The adjudicating authority is not incompetent to decide the issue relating to limitation. It is therefore open for the petitioner to substantiate the case before the respondent that there is no case made out for invoking extended period of limitation under Proviso to Section 73 of the Finance Act 1994 - The petitioner has an alternate remedy which is more efficacious. In case an adverse order is passed the petitioner still has an alternate remedy by filing an appeal before the Appellate Authority. The petitioner cannot short circuiting the show cause proceedings by filing a writ petition by merely citing proviso to Section 73 of the Finance Act 1994. Petition dismissed.
Issues Involved:
Challenge to the jurisdiction of the Show Cause Notice invoking proviso to Section 73 of the Finance Act, 1994. Analysis: The petitioner challenged the Show Cause Notice dated 22.10.2021, alleging it was issued without jurisdiction by incorrectly invoking the proviso to Section 73 of the Finance Act, 1994. The petitioner relied on a decision of the Calcutta High Court in Simplex Infrastructures Limited Vs. Commissioner of Service Tax, Kolkata, to support their argument. The petitioner contended that the notice was issued beyond the prescribed time limit and that the Department's invocation of the extended period of limitation was unjustified. The Court noted that the mere reproduction of statutory language does not automatically justify the extension of the limitation period. It emphasized that the notice must provide specific details and circumstances supporting the allegation of willful suppression of material facts by the noticee to evade tax. The Court highlighted that the burden of proof lies with the Department to substantiate such allegations. The petitioner also referred to the proviso to Section 73 of the Finance Act, 1994, but failed to demonstrate how the cited decisions and provisions were inapplicable or why no case of fact suppression was made. The Court pointed out that such determinations should be made based on factual evidence before the adjudicating authority. It clarified that the adjudicating authority is competent to decide issues related to limitation. The Court advised the petitioner to present evidence to the respondent contesting the need for invoking the extended period of limitation under the proviso to Section 73 of the Finance Act, 1994. Consequently, the Court found no merit in the writ petition challenging the Show Cause Notice. It highlighted that the petitioner has an alternative and more effective remedy available, such as filing an appeal before the Appellate Authority if an adverse order is issued. The Court cautioned against attempting to bypass the show cause proceedings by directly filing a writ petition based solely on legal provisions and previous court decisions. As a result, the writ petition was dismissed without costs, and connected Writ Miscellaneous petitions were closed.
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