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TMI Blog2015 (10) TMI 2407X X X X Extracts X X X X X X X X Extracts X X X X ..... C.J. Mathew, Member (Technical) Shri. Vinod Awtani Advocate : For the Petitioner Shri. A.B. Kulgod , AC (AR) : For the Respondent ORDER Per: M.V. Ravindran 1. These two appeals are directed against order-in-appeal no.RBT/04/2011 dated- 11.01.2011. 2. Since both the appeals are filed by the same appellant and issue involved also being the same, we are being disposed of by a common order. 3. The relevant facts that arias for consideration are appellant here-in are providing consulting engineers services to their client mainly National Highway Authority of India, MMRDA and MSRDC and are discharging service tax liability on the amounts billed and received as consulting fees, during the process of rendering such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis incurred in respect of deputation of professionals, of supporting staph, transportation charges on duty to site office, rent out the site office an amount paid for accommodation of staff etc. 7. We find strong force in the contentions raised by the learned charted accountant that the issue is now squarely covered by the Judgment of the Hon ble High court of Delhi in the case of Inter Continental Consultants and Technocrats Pvt. Ltd. (Supra). We with great respect reproduce the relevant paragraphs No. 10, 11, 18. 10. The contention of the petitioner that Rule 5(1) of the Rules, in as much as it provides that all expenditure or costs incurred by the service provider in the course of providing the taxable service shall be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the official gazette, such rules can only be made for carrying out the provisions of this Chapter i.e. Chapter V of the Act which provides for the levy, quantification and collection of the service tax. The power to make rules can never exceed or go beyond the section which provides for the charge or collection of the service tax. 11. In the aforesaid backdrop of the basic features of any legislation on tax, we have no hesitation in ruling that Rule 5(1) which provides for inclusion of the expenditure or costs incurred by the service provider in the course of providing the taxable service in the value for the purpose of charging service tax is ultra vires Section 66 and 67 and travels much beyond the scope of those section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has distinctly enacted it. It is only when there are general words of taxation and they have to be interpreted, they cannot be so interpreted as to tax the subject twice over to the same tax (vide Channell J. in Stevens v. Durban-Roodepoort Gold Mining Co. Ltd.). The Constitution does not contain any prohibition against double taxation even if it be assumed that such a taxation is involved in the case of a firm and its partners after the amendment of section 23(5) by the Act of 1956. Nor is there any other enactment which interdicts such taxation. It is true that section 3 is the general charging section. Even if section 23(5) provides for the machinery for collection and recovery of the tax, once the legislature has, in clear terms, indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of 67. Clause (i) of sub-section (1) of Section 67 provides that the value of the taxable service shall be the gross amount charged by the service provider for such service. Reading Section 66 and Section 67(1)(i) together and harmoniously, it seems clear to us that in the valuation of the taxable service, nothing more and nothing less than the consideration paid as quid pro quo for the service can be brought to charge. Sub-section (4) of Section 67 which enables the determination of the value of the taxable service in such manner as may be prescribed is expressly made subject to the provisions of sub-section (1). The thread which runs through Sections 66, 67 and Section 94, which empowers the Central Government to make rules for carryin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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