M/s. Galaba Manoj Kumar Vs the Assistant Commissioner of Central Taxes

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased tomay be pleased to issue any order or direction more particularly one in the nature of Writ of Mandamus or any other appropriate writ or order or direction declaring the assessment Proceedings of the 1st respondent, passed in 010 No - NLR -AC-13-2023-24-ADJN- ST, Dated 12.04.2024 served on 22.05.2023 (Annexure P-1) for levy of service tax on Works contract services provided to the 4th and 5th respondents for the tax period Apnl-2016 to June-2017, is contrary to the exemption granted at entry No. 12A Notification No. 25/20121 -Service tax dated 20.06.2012 inserted Vide Notification No.9/2016-ST dt. 01.03.2016 (Annexure P-2), and more particularly is not a service as per interpretation at Sec. 65(B)(44) of Service Tax -CHAPTER-V of Finance Act 1994(herein after referred to as the Act) and without considering the letter of objections dt. 09.12.2021 (Annexure P- 3), filed by the petitioner is against to principles of natural justice, as arbitrary, barred by limitation of time and without jurisdiction. Hence, the proceedings of the 1st respondent is liable to be set aside and pass such

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IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant stay of all further proceedings, pursuant to the impugned Proceedings of the 1st Respondent, in 010 No - NLR -AC-13-202324-ADJN-ST, Dated 12.04.2024 served on 22.05.2023 pending disposal of the above writ petition, as otherwise, the petitioner would be put to severe loss and hardship

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Counsel for the Petitioner:

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1.K ADI SIVA VARA PRASAD

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Counsel for the Respondent(S):

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1.D NAGARAJA KUMARI

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2.Gudapati Lakshminarayana SC For Municipalities in Rayalaseema Region

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3.GP FOR PANCHAYAT RAJ RURAL DEV

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The Court made the following order:

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(Per Hon’ble Sri Justice R.Raghunandan Rao)

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The petitioner is a contractor who executes works contract given by various authorities as well as sub-contracts given by the main contractor. The Assistant Commissioner of Central Tax , who is arrayed as the 1^st respondent herein had initiated proceedings, under the Service Tax regime, contained in the Finance Act, 1994, for the period 2016-2017 and 2017-2018, on the basis of Form 26AS, which was available with the Income-tax Department, setting out the TDS deducted, by various persons, in relation to payments made to the petitioner. The 1^st respondent after giving an opportunity of hearing and opportunity to place all the relevant records, to the petitioner, had passed an order of assessment, dated 12.04.2024, bringing to tax the turnover of the petitioner for the said period. Aggrieved by this order of assessment, the petitioner has approached this Court by way of the present writ petition.

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The 1^st respondent had sought to levy service tax on the turnovers of the petitioner on the ground that they are services of works contract in relation to immovable property which are taxable. The petitioner, contended that all the works, which are the subject matter of the assessment, are the works which the petitioner either contracted with the local bodies or works which had been awarded to him, by way of sub contracts, by the main contractor, who had undertaken similar works in the local bodies. The petitioner contended

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that all the services would be exempt by virtue of entry 12 and entry 29H of notification No.12 of 2012, dated 17.03.2012.

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The 1^st respondent rejected these claims on the ground that necessary documentation to show that the turnovers, under assessment, are amounts received from the local bodies as well as the main contractors, who had been undertaken works from the local bodies had not been filed.

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The primary contention of the petitioner is that the necessary documents had been placed before the 1^st respondent, who had ignored the said documents and had come to an erroneous conclusion. The petitioner would contend that this has resulted in violation of principles of natural justice which requires to be rectified.

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A perusal of the documents filed by the petitioner, before the 1^st respondent, would show that the petitioner had filed a Form 26 AS, which is maintained by the Income Tax Department. In this Form, certain turnovers arise out of the receipts from Cheerala Municipality. Apart from this there are also receipts of money from M/s. R.Gangaiah and Company, which according to the petitioner, was the main contractor executing works for Cheerala Municipality and that the said amounts had been received as consideration for the said contracts executed by the petitioner in relation to these works contract.

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As pointed out by the 1^st respondent, the petitioner had not produced any running account bills or any certification issued by the Cheerala Municipality either in favour of the petitioner or in favour of M/s.R.Gangaiah and Company to demonstrate that these amounts are arising out of the contracts which would be exempt under the notification No.12, dated 17.03.2012. On the contrary, the learned counsel for the petitioner would submit that the entries in Form 26AS are sufficient to show that the said amounts arise out of the contracts which cannot be taxed, in view of the exemption granted under the notification No.12.

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A perusal of these contentions as well as the contention of Smt.Nagaraja Kumari, learned standing counsel appearing for the respondents, would make it clear that these are the issues relating to ascertaining whether the turnovers arise out of contracts which are exempted, under the notification No.12. The material already placed by the petitioner would partially answer these questions. However, the requirement of the 1^st respondent that further documents to demonstrate, that these amounts relate to exempted transactions cannot also be denied.

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In the aforesaid circumstances, it would be appropriate to set aside the impugned order, dated 12.04.2024 and remand the matter back to the 1^st respondent so that the petitioner had adequate opportunity of placing all the relevant records before the 1^st respondent to make out his case of exemption.

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