9911796707
TMI Blog2014 (1) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... t') despite neither circumstance existed for making of best judgment assessment order as there is no allegation that the petitioner failed to file service tax returns or tax paid in the service tax return filed is not in accordance with law. It is stated that the petitioner was never served with notice before best judgment assessment was made. The petitioner has made reference to Section 73 of the Act and pointed out that appeals to the Tribunal are maintainable against the order under Section 73 and not against an order under Section 72 of the Act. 2. The stand of the respondents is that no assessment order has been passed and the writ petition has been filed only against demand-cum-show cause notice. In view of the contentions raised and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment." 4. Audit of the assessee was conducted by the officers of the Service Tax Commissionerate for the period 2006-07 to 2010-11 and thereafter a different show cause notice dated 24.4.2012 was issued for the period 2006-07 and 2010-11. In the present show cause notice it is stated that as the petitioner did not produce books of accounts, the respondents had computed taxable annual turnover by increasing the turnover for previous year 2010-11, by 20%. On this basis/ ratio, calculations have been made in paragraph 5 of the notice to determine the alleged non-payment. 5. Paragraph 6 of the said notice refers to the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be recovered from them under Section 75 of the Finance Act, 1994; iv) Penalty under Section 76 of the Finance Act, 1994 should not be imposed upon them for failure to pay the Service Tax in accordance with the provisions of Section 68 of the said Act read with Rule 6 of Service Tax Rules, 1994; v) Penalty under Section 77(2) of the Finance Act, 1994 should not be imposed upon them for contravention of Section 70 of the said Act by way of not filing the periodical ST-3 returns correctly for the relevant period;" 6. Learned counsel for the respondents, on instructions, has clarified and stated that the amounts mentioned in paragraph 7(ii) quoted above are tentative or approximate amounts and no final o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts, documents and material and thereupon the assessing officer is required to pass an order. Thus, the best judgment assessment order under Section 72 may not be akin to an ex parte order. Such an order will be akin to an ex parte order, when the assessee fails to produce records and the assessing officer has to proceed on other information or data which may be available or part details produced. It is well settled law that the heading of the Section is not determinitative and conclusive as to the scope and ambit of a section when the language of provision is clear and free from any doubt. 10. We need not in the present case examine the question whether there is overlapping between Section 72 and 73 of the Act and where and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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