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TMI Blog2014 (1) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... demand-cum-show cause notice dated 19.12.2012 - time granted to petitioner to file reply to the show cause notice and direct that adjudication order-in-original will be passed after hearing in accordance with law - Decided in favour of assessee. - W P (C) No.3800 of 2013 - - - Dated:- 30-10-2013 - Sanjiv Khanna And Sanjeev Sachdeva, JJ. For the Appellant : Mr J K Mittal, Adv. For the Respondents : Mr Satish Kumar and Mr Harsh Makhija, Advs. JUDGEMENT:- National Building Construction Corporation Limited has invoked the writ jurisdiction seeking quashing of demand-cum-show cause notice dated 19.12.2012. The primary contention in the writ petition is that the respondents have passed a best judgment assessment order under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en into account on the basis of best judgement assessment as provided under Section 72 of the Finance Act, 1994 which read as under:- If any person, liable to pay service tax,-- (a) Fails to furnish the return under Section 70; (b) Having made a return, fails to assess the tax in accordance with the provisions of this chapter or rules made thereunder; the Central excise officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of his judgment and determine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igher Secondary Education Cess) amounting to Rs.2,29,16,563/- (Rupees Two Crore Twenty Nine Lacs Sixteen Thousand and Five Hundred Sixty Three Only), as detailed in Para No. 5(A+B) of this Show Cause Notice should not be demanded and recovered from them under proviso to Section 73(1) of Finance Act, 1994 read with Section 66 and 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994, further read with Section 91 and Section 95 of the Finance Act, 2004 and Section 136 read with Section 140 of the Finance Act, 2007 for Education Cess and Higher Secondary Education Cess respectively. iii) Interest at the rates applicable on the amount of service tax not deposited should not be recovered from them under Section 75 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment." 9. It would be difficult to call or treat section 72 per se as an ex parte assessment procedure as ordinarily understood under the Income Tax Act, 1961. The section mandates the assessee to appear and furnish books of accounts, documents and material and thereupon the assessing officer is required to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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