9911796707
TMI Blog2024 (11) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... iction and consequently the order-in-original also would not survive. The petition is accordingly succeeds. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N. RAY Appearance : For the Petitioner(s) No. 1: Mr Abhishekkumar C Malvi (9941). For the Petitioner(s) No. 1: Mr Maulik Vakhariya (6628). For the Respondent(s) No. 1,2,3: Deepak N Khanchandani (7781). ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for direction to the respondent No. 2 and further prayed for quashing and setting aside the show cause notice dated 22.04.2021 (Annexure-D) and order-in-original dated 31.10.2022 (Annexure-F). 2. Brief facts of the case are as under:- 2.1 The petitioner is an approved E-1 (class contractor) for rendering Works Contracts with respect to Road Building Department/Irrigation Department/Public Health Engineering Wing. 2.2 According to the petitioner, the petitioner was not covered within the provisions of the Finance Act, 1994 which provides for Service Act as the services provided by the petitioner were not within the realm and sweep of the Service Tax. 2.3 It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appeal before the Commissioner Appeals (Appeals) due to ill health. 2.11 It appears that thereafter the Mehsana Urban Cooperative Bank Limited, Idar Branch, Idar addressed a letter dated 25.01.2024 to the petitioner informing about the debit freezing of the current account and saving account by the respondent No. 3 as part of the recovery proceedings based on the adjudication order dated 31.10.2022. 2.12 The petitioner, thereafter filed an application under Section 74 of the Finance Act, 1944 for rectification of mistake with respect to the order-in-original on 11.03.2024. 2.13 As there was no response to the said application of rectification filed by the petitioner the present petition is filed to quash and set aside the order, show cause notice dated 22.04.2021 and the order-in-original dated 31.10.2022 passed by the respondent. 3. Learned Senior Advocate Mr. S.N. Soparkar with learned advocate Mr. Maulik Vakharia and learned advocate Mr. Abhishek Kumar Malvi for the petitioner submitted that the impugned show cause notice based upon the particulars in Form-26AS is without jurisdiction more particularly when the respondent authorities have failed to take into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 subject for levy of Service Tax, Interest and Penalty. 7. It was further submitted that the respondent authorities have also failed to consider the rectification of mistake application filed by the petitioner at the repeated reminders made thereafter to rectify the impugned order-in-original, and therefore, the petitioner was constrained to prefer this petition. 8. On the other hand, learned advocate Mr. Deepak N. Khanchandani for the respondents submitted that the petitioner has failed to reconcile the amount of income as stated in the show cause notice with that of the various details called for. 9. In support of his submissions, reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent Nos. 1 to 3. 8. It is to submit that the proceeding against the taxpayer was only be initiated after the Income Tax Department shared the data of the income received by the petitioner for the Financial Year 2015-16 and 2016-17. The Income Tax Authority provided the following information about the petitioner:- Sr. no. Period (F.Y.) Income received (In Rs.) Business Description (Service Sector) 1 2015-16 26230725 Others 2 2016-17 38404 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12 (A) of Exemption Notification No. 25/2012-Service Tax dated 20.06.2012 cannot be extended to the petitioner and hence, the Order in Original dated 31.10.2022 confirming the liability of the service tax along with penalty is legitimate and as per the law. Therefore, the averments of the petitioner are beyond the provisions of the Act and liable to be dismissed. 10. With regard to the contention raised on behalf of the petitioner for not filing the appeal as prescribed under Section 85 of the Finance Act, 1994 and the rectification application filed by the petitioner it was submitted that the Adjudicating Authority has not refused to adjudicate the rectification application as the petitioner failed to challenge the impugned order-in-original and there was no mistake in the same. It was pointed out that the respondents have called for the information and clarification from the various forms and persons, and therefore, the reliance was placed on the data provided by the Income Tax Department in ITR as well as the Form-26AS which is considered for the purpose of determining the Taxable Services of the petitioner. 11. Considering the submissions made by the learned advocates for bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 66B of the Act, 1994 the charge of service tax on or after is to be levied as a tax at the rate of 14% on the value of all services other than those services specified under negative list. The petitioner was required to file return for the service provided by it for the construction of road in view of the provisions of the Service Tax Act. The respondent-authorities on the basis of the GST registration made by the petitioner in the year 2020 after obtaining the Form No. 26AS presumed that the petitioner failed to file return of income without verifying as to whom the petitioner has provided the services who had deducted the tax at source for the payment made to the petitioner for the services rendered by the petitioner. On bare perusal of the Form No. 26AS placed on record, it is revealed that the none of the parties from whom the petitioner has received the amount for rendering the services and the tax was deducted at source was situated in the State of Gujarat and accordingly, the respondent Authority has no jurisdiction to issue any show-cause notice for the services rendered by the petitioner at Rajasthan as none of the parties to whom the services were rendered was situate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
