9911796707
TMI Blog2014 (5) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the original authority proceeded to impose the tax under the head ‘Business Auxiliary Service’ which is taxable u/s 73(1)(d) and 73(1)(e). The fact that there was no proposal in the show cause notice to include the income as auxiliary business service is indisputable in view of the contents of the show cause notice and therefore in the absence of any notice issued to the respondent in view of the provisions of Section 73, it is clear that imposition of tax and consequently interest and penalty cannot be sustained and the same has been rightly set aside by the Tribunal. As no order to treat the income as Business Auxiliary Service had been passed without proposing the same to the respondent in the show cause notice, the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Consultant Services; that as per Section 65A(2) of Finance Act, 1994 and therefore show cause notice was issued to the following effect : "1. Service Tax amount of Rs. 90,96,501/- (Rupees Ninety Lakhs Ninety Six Thousand Five Hundred One Only) on the taxable value of Rs. 16,48,11,884.00 not paid for the period from January, 2001 to August, 2004 and Rs. 15,85,394/- (Rupees fifteen lakh eighty five thousand three hundred ninety four only) on the taxable value of Rs. 1,55,43,084/- not paid for the period from September, 2004 to March, 2005 as shown in the worksheet enclosed to this show cause notice should not be demanded and recovered from them sub-section (1)(a) of Section 73 of Chapter V of Finance Act, 1994; 2. Interest on (1) above s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1994 and the show cause notice did not contain any proposal to include the income towards management and business auxiliary charges and the original authority having accepted the contention of the assessee that the income did not fall within the ambit of management consultancy service could not have imposed service tax on auxiliary charges in respect of which no show notice was issued and the said contention was upheld by the Tribunal and the appeal was allowed and the impugned order-in-original was set aside by order dated 22-11-2006. Being aggrieved by the said order, this appeal is filed which is admitted for consideration of the following substantial questions of law : "1. Whether the Assessing Authority has got power to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions urged by the learned counsel for the appellant. It is clear from the perusal of the show cause notice that as culled out above that what was proposed was to impose Service Tax amount of Rs. 90,96,501/- u/s 73(1)(a) of the Finance Act. In view of the explanation submitted in response to the show cause notice, the original authority held that the tax could not have been leviable under the said Act u/s 73(1)(a). However, the original authority proceeded to impose the tax under the head 'Business Auxiliary Service' which is taxable u/s 73(1)(d) and 73(1)(e). The fact that there was no proposal in the show cause notice to include the income as auxiliary business service is indisputable in view of the contents of the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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