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TMI Blog2022 (12) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... unt the order passed by the Appellate Tribunal dated 5 March 2019 (Exh.I) wherein a demand of the department for the earlier period from October 2007 to March 2013 was negated. It therefore clearly revealed that there is non-application of mind while passing the impugned order. Similarly, it is clear from the reasonings in the impugned order that Respondent No.2 failed to take into account reply and the document produced by the Petitioner to the show-cause notice, which now compelled us to quash and set aside the impugned order and to remand the matter for fresh consideration by taking into account the reply and the documents to the show-cause notice as well as the orders passed by the Appellate Tribunal with regard to the earlier show-cause notices. The impugned order is set aside by remanding it to the said authority to decide it afresh by considering reply filed by the Petitioner to the show-cause notice, documents attached to it and also by giving personal hearing - petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notices was terminated with effect from 01.04.2013 by Deed of Cancellation. He submits that the present show cause cum demand notice dated 03.02.2016 was issued on the basis of the earlier two previous show cause notices. 3. At the request of the learned Counsel for the respondents, stand over to 26.11.2021. Affidavit in reply to be filed in the registry and an advance copy to be served on the learned Counsel for the petitioner. 4. In the meantime, till the next date the respondent authority shall not take any coercive steps as against the petitioner." 4. On 6 January 2022, a coordinate Bench of this Court put the parties to the notice that the matter will be taken up for final disposal at the admission stage itself. Accordingly, the matter is taken up today for final disposal. 5. Heard learned Counsel Mr Bharat Raichandani appearing with Mr Vibhav Amonkar and Mr Rishabh Prasad for the Petitioner and Ms Priyanka Kamat, learned Standing Counsel for Respondent Nos. 1 and 2. 6. Learned Counsel for the Petitioner submits that impugned order is ex facie bad in law and made without considering the reply filed by the Petitioner. Similarly, the joint venture between the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to manage the same and as such were looking for a joint venture partner for expanding their business, for which BAPL had expressed its willingness to invest in the business of M/s GGCPL by providing all infrastructure facilities for the propose of running of casino. BAPL also agreed for possessing necessary licence to run casino in their hotel. In the joint venture agreement, GGCPL and BAPL agreed to share Gross Win/Loss in the ratio of 55:45 respectively of the gross income received from their guests who played on the machines/tables. The revenue sharing was to be done at the end of every financial year or during such interval as mutually agreed from time to time. 10. Respondent scrutinized the records of BAPL and it was found that BAPL had provided Support Services to M/s GGCPL and for which BAPL received the share of Gross Win. The show-cause notice dated 23 April 2013 was issued to BAPL by the Respondent for the period from 1 October 2007 to 31 March 2012 (Exh.D). By such show-cause notice, BAPL was called upon to show cause as to why the levy of service tax under the category of "Support Service of Business or Commerce" as defined under Section 65 of the Finance Act, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from October 2007 to March 2013. Upon analysis and scrutiny of the joint venture agreement, the adjudicating authority by relying on the board circular No. 109/03/2009 dated 23.02.2009 has held that there is no relationship of service provider or service receiver between the parties to joint venture agreement and there is no consideration received by either side for rendering the service. He has further held that the agreement specifically provides that the profit/loss arising out of the business should be shared by both sides. Thus, it transpires that there is no involvement of two parties, to execute the terms of the agreement; one is to be considered as service provider and the other to be service receiver. The department has not challenged the show cause notice issued for the entire period i.e. prior to introduction of the negative list and thereafter. Thus, it emerges that the department is not contesting specifically the findings of the Learned Commissioner that there is no relationship existing between the service provider and the service receiver and that no consideration has been received for providing any taxable service. Therefore, we are convinced with the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 75 nor any penalty under Section 76, 77 and 78 of Chapter V of the Finance Act, 1994. 9. In view of the foregoing, it is requested to drop the demand against us raised vide Show cause notice No. CX-ST/SCN/Adj./25/15-16/Commr. Dated 3.2.2016 issued vide F.No. CX-ST/SCN/Adj./18/V.V.R./2015-16/6425." 15. Petitioner also enclosed a deed of cancellation dated 1 April 2013 as Exh.2 along with their reply and requested the said authority to drop the demand raised in the said show-cause notice. 16. Respondent No.2 vide its order dated 27 April 2021 (impugned order) confirmed the demand of the service tax amounting to 4,50,15,294/- for the period from April ₹ 2013 to March 2015 raised under the provision of Section 73(1) of Finance Act, 1994 and ordered for recovery of the same. A penalty of ₹10,000/- is also imposed under Section 77 of the Finance Act, 1994 on the Petitioner. 17. The learned Counsel Mr Raichandani would submit that discussion and findings starting from para 6 onwards in the impugned order clearly goes to show that Respondent No.2 failed to take into account the reply dated 20 June 2016 filed by the Petitioner to the show-cause notice and the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when admittedly the joint venture was not in existence. 21. The learned Counsel Mr Raichandani placed reliance on the decision in the case of Goregaon Sports Club v. Assistant Commissioner of Income Tax & Ors. W.P. (L) No.25507 of 2021, decided on 13 December 2021 at the Principal Seat. In the said case, the argument was of breach of principles of natural justice and non-application of mind by the Assessing Officer while deciding the show-cause notice. It was observed that the concerned officer recorded in its impugned order that no reply was filed by the assessee, however, he failed to take into consideration that such reply was filed by the assessee much earlier which concerned Officer failed to take notice of. On these premises, it was observed that ignoring such reply and forcing the Petitioner to approach the Court is again adding to the docket of already burdened Court and hence a cost was imposed on the concerned Officer. While doing so, the assessment order was quashed and set aside and direction was given that a different Assessing Officer shall consider the submissions made by the Petitioner and pass assessment order within a stipulated period. 22. The learned Counsel M ..... 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