9911796707
TMI Blog2024 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of taxation and for other legal purposes. In case of ANILKUMAR MAHESARIA [ 2007 (12) TMI 175 - HIGH COURT DELHI] has held that proprietor and proprietorship concerned are not separate entities and similar view has also been held in Commissioner of Customs CSI AIRPORT, MUMABI Vs. GYANCHAND JAIN [ 2015 (9) TMI 510 - BOMBAY HIGH COURT] We find that there is no difference between the proprietorship firm namely M/s IRIS Engineering Co. and Shri Chittranjanbhai D. Badheka and therefore, the provisions of the Rule 2 (1) (d) (EE) of Service Tax Rules, 1994 read with terms of Notification No. 30/2012-ST dated 20.06.2012 will be applicable and the party should have discharged the Service Tax liability on reverse charge basis on the services prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department that the appellant has received Engineering Consultancy Service from M/s IRIS Engineering Co., which was a proprietorship concern of Shri Chittranjanbhai D. Badheka. Shri Chittranjanbhai D. Badheka is also one of the Director of the appellant firm. It has been a contention of the department that since the proprietorship concerned namely M/s IRIS Engineering Co. did not have a separate PAN Number and hence, they entertained a view that the services provided by the proprietorship concerned to the appellant as per the provisions of the Rule (2) (1) (d) (EE) of Service Tax Rule, 1994 read with Notification No. 30/2012-ST dated 20.06.2012, the appellant firm should have discharged the Service Tax liability on the services received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot by a person who is a Director of the company. The liability of Service Tax was on M/s IRIS Engineering Co. who is the service provider as no service is provided by the Director. The proprietorship concern of Shri Chittranjanbhai D. Badheka is in existence since March, 2008 whereas the appellant company i.e. M/s IRIS Automation Pvt. Ltd. came into existence in April, 2009. As the annual turnover of M/s IRIS Engineering Co. was below 10 Lacs, it was claiming small service provider exemption and not paying Service Tax. 2. Secondly, it has been contended by the learned Advocate that the issue is completely revenue neutral as in this case if the Service Tax liability falls on the appellant on reverse charge basis they could have availed the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hittranjanbhai D. Badheka. Thus, the only question which need to be answer by us is whether the services provided by M/s IRIS Engineering Co. can be considered as service provided by one of the director of the appellant company. 4.1. We are of the opinion that it is a settled preposition that sole proprietorship concerned is not a separate legal entity from proprietor for the purpose of taxation and for other legal purposes. In case of ANILKUMAR MAHESARIA Vs. COMMISSIONER OF CUSTOMS- 2008 (228) E.L.T. 166 (Del.), Hon ble High Court of Delhi has held that proprietor and proprietorship concerned are not separate entities and similar view has also been held by the Hon ble High Court of Bombay in case of Commissioner of Customs CSI AIRPORT, MUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit the Service Tax liability is on the appellant. However on the issue of limitation we find that from the data submitted by the Ld. Counsel and the ST-3 return it is evident that the appellant paying major amount of Service Tax in cash and small portion of tax was paid from Cenvat. Therefore, the demand amount of approximate 17.5 Lakhs is also available as a Cenvat Credit to the appellant, to that extent the Service Tax payment in cash will stand reduced. Therefore, this is a clear case of Revenue neutrality. Accordingly, the non-payment of Service Tax cannot be said to be with malafide intention. The issue of Revenue neutrality has been considered in various judgments cited by the appellant in particular Larger Bench judgment in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
