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TMI Blog2024 (5) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... from payment of service tax under certain circumstances. Levy of service tax - income from sale of books, apart from income from profession - Section 73 of the Finance Act, 1994 - reverse charge mechanism - HELD THAT:- The services rendered to a business entity with a turn over above rupees ten lakh would fall outside the purview of the exemption, however, in such of those cases also, in terms of Notification 30/2012-ST dated 20.06.2012, the liability is on the recipient by way of reverse charge mechanism - there is no factual adjudication, but on the basis of applicable law, the service rendered by advocates is exempt and even if it falls outside the exemption, the liability is on the recipient of the services and not the legal professional. Clearly in light of such narrow factual context the notices and orders are one without jurisdiction and challenge can be entertained directly irrespective of the alternate legal remedy that is available. As also laid down by the Apex Court in Radha Krishan Industries v. State of Himachal Pradesh and Others [ 2021 (4) TMI 837 - SUPREME COURT] that the High Court can entertain a writ petition despite there being an effective alternative remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions are clubbed and are taken up together and decided by a common order. 3. The table reflecting the relief sought for is as below: Sl. No. W.P. No. Prayer Sought 1. W.P. No. 26096/2022 A. Issue a Writ of certiorari quashing the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure A. B. Issue a Writ of certiorari quashing all proceedings under the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure-A. 2. W.P. No. 10865/2021 A. Issue a writ of certiorari to quash impugned Show Cause Notice dated 27.04.2021 bearing SCN No. 123/2021-22 JC and having Digital Identification No. ('DIN') 20210457YV000000DC2F, enclosed as Annexure A. B. Writ of declaration to declare that the provisions of Section 174 of Central Goods and Services Tax Act, 2017, enclosed as Annexure B, as unconstitutional. 3. W.P. No. 8414/2022 A. Issue a writ of certiorari to quash the impugned Show Cause Notice dated 23.04.2021 notice bearing Reference No. 132/ST/2021-SD3 934/2021, issued by the respondent, enclosed as Annexure A. B. Issue a writ of certiorari to quash impugned Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of advocates who offer legal services. 6. In terms of Notification No. 25/2012-ST dated 20.06.2012 passed in exercise of power under Section 93 (1) of the Finance Act, 1994 the Central Government has petitioner exempted certain taxable services from the whole of the service tax leviable under Section 66B of the Finance Act, 1994. Amongst the services exempt, it includes services of legal professionals consisting of Partnership Firm of Advocates or an individual Advocate other than a Senior Advocate. Clause 6(b) of the Exemption Notification No. 25/2012-ST dated 20.06.2012 provides as follows: (b) a partnership firm of Advocates or an individual as an advocate other than a senior advocate, by way of legal services to - (i) an advocate or partnership firm of advocates providing legal services; (ii) any person other than a business entity; or (iii) a business entity with a turn over up to rupees ten lakh in the preceding Financial Year; 7. Even where individual advocates or partnership firm of advocates who fall outside the exemption under the Notification 25/2012-ST, the person liable to pay service tax is the recipient of the service. 8. In terms of Notification No. 30/2012-ST dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he negative list excludes under item (e) trading of goods . Accordingly, income from sale of goods (books) will be excluded from the purview of service tax. 12. The contention of the Department is that there is a separate statutory remedy and that petitioners ought not to be permitted to short cut such statutory remedy by recourse to the present proceedings. It is also contended that there are disputed questions that ought not to be made subject matter of adjudication in the proceedings under Article 226 of the Constitution of India. It must be noticed that availability of alternative remedy is not a blanket bar for entertainability of a writ petition. In the case of the advocates who are practicing, it is clear that there is an exemption, which aspect comes out clearly from Clause-6(b) of the Exemption Notification No. 25/2012-ST dated 20.06.2012, which is passed in exercise of power under Section 93 (1) of the Finance Act, 1994. The services rendered to a business entity with a turn over above rupees ten lakh would fall outside the purview of the exemption, however, in such of those cases also, in terms of Notification 30/2012-ST dated 20.06.2012, the liability is on the recipien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would fall within the category of sale of goods and is outside the purview of service tax. II Re: W.P. No. 18943/2022 The document furnished by the petitioner would indicate that it is income from profession as well as income from services rendered as a Notary. This is evident from the profit and loss account entry. Memo is filed on 08.02.2024 stating that income is only from legal profession. In terms of the reasoning supra, such income is exempt from service tax and even otherwise, recipient would have to pay on reverse charge mechanism. Accordingly, the order in original is one without jurisdiction. III Re: W.P. No. 26558/2023 Petitioner is an advocate and has filed a memo on 12.02.2024 stating that except professional income, he has no other source of income and on the same legal logic referred to supra, the order passed by the revenue is one without jurisdiction. IV Re: W.P. No. 26096/2022 The petitioner is a partner of the Firm of lawyers, 'Crest Law Partners'. It is stated that there was no notice to the petitioners. The statement of income enclosed along with the papers would indicate that income is from the Partnership Firm of Advocates. Memo filed on 03.02.2024 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2022 bearing DIN No. 2022035700000000E4FB vide Order-In-Original No. 45-46/2022-SD2 passed by respondent No. 3 at Annexure-J, W.P. No. 10776/2022 is set aside. (ii) The order dated 14.10.2022 bearing DIN No. 202210570000003164E7 vide Order Sl. No. 263/2022 SD-4/2733/22 at Annexure-A in W.P. No 26096/2022 is hereby quashed. (iii) The show cause notice dated 23.04.2021 bearing Reference No. 132/ST/2021-SD3 934/2021 at Annexure-A and the Order-In-Original bearing C. No. 132/ST/2021-SD3-1605/2022 dated 26.03.2022 at Annexure-B in W.P. No. 8414/2022, are hereby quashed. (iv) The show-cause notice dated 27.04.2021 bearing SCN No. 123/2021-22 JC at Annexure-A in W.P. No. 10865/2021 is set aside. (v) The Order-In-Original No. 57/2022-23 ST ND4 dated 29.07.2022 at Annexure-D in W.P. No. 18943/2022 is hereby quashed. (vi) The recovery notice bearing C. No. IV/16/84/2021 CWD 3 dated 27/09/2023 at Annexure-C and the Order-In-Original dated 28.12.2022 bearing No. 68/2022-23 at Annexure-E in W.P. No. 26558/2023 are hereby quashed. ----------------- Notes: 1. The relevant observations are as follows: 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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