M/S S N Tours and Travels Vs the Assistant Commissioner of Central Tax

M/S S N TOURS AND TRAVELS, (A PROPRIETARY CONCERN REGISTERED UNDER THE ERSTWHILE PROVISION OF FIANANCE ACT, 1994) NO. 155/41, 1ST MAIN, 4TH CROSS, NGR LAYOUT, ROOPENA AGRAHARA, BOMMANAHALLI, BENGALURU - 560 068. (REP. BY ITS PROPRIETOR SHRI. SATHISH KUMAR C N S/O. CHIKKANAYAKANAHALLI NANJAPPA, AGED ABOUT 44 YEARS).

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Digitally signed by VIJAYA P Location: HIGH COURT OF KARNATAKA

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(BY SRI. PRAKASH D, ADVOCATE)

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AND:

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…PETITIONER

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THE ASSISTANT COMMISSIONER OF CENTRAL TAX, SD-7, BENGALURU SOUTH COMMISSIONERATE, 7TH FLOOR, A WING, KENDRIYA SADAN, KORAMANGALA, BENGALURU - 560 034.

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…RESPONDENT

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(BY SRI. ARAVIND V CHAVAN, ADVOCATE)

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HC-KAR

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO (A) ISSUE A WRIT OF CERTIORARI, OR SUCH OTHER WRIT, ORDER OR DIRECTION AS THIS HONBLE COURT MAY DEEM FIT AND QUASH THE IMPUGNED ORDER PASSED BY RESPONDENT IN ORDER-IN-ORIGINAL SL. NO. 207/202223 SD-7/906/2023 DATED 28.03.2023 AT ANNEXURE C AND ETC.,

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THIS PETITION, COMING ON FOR ORDER, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV

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ORAL ORDER

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The petitioner has called in question the validity of the order-in-original at Annexure-C. The petitioner submits that the proceedings were initiated on the basis of inputs received from the Central Board of Direct Taxes and that the demand for service tax is based on the declarations made in the Income Tax returns. It is further submitted that this Court in similar factual matrix has been remitting the matter for fresh consideration in terms of the observations made in W.P.No.11154/2023 and connected petitions.

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HC-KAR

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It is further submitted that the liability for service tax, even otherwise, is on the recipient by virtue of the notification No.30/2012 and accordingly, it is submitted that the authorities have issued notice under the Finance Act raising demand of service tax, which proceedings are without jurisdiction.

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Perused the order dated 03.07.2024 passed in W.P.No.11154/2023 and connected petitions, in the case of M/s. Karnataka Chinmaya Seva Trust, Chinmaya Mission Hospital Vs. Joint Commissioner of Central

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Tax and another .

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"These petitions have been filed calling in question the action of the respondent Department in issuing showcause notice or having passed the orders-in-original relating to demand sought to be raised under the provisions of the Finance Act, 1994 relating to service tax liability.

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In all these matters, the proceedings by way of show-cause notice under the Finance Act for service tax liability have been initiated on the basis of inputs received from the Central Board of Direct Taxes on the basis of Form 26AS/Income Tax returns filed.

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HC-KAR

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The details of the writ petitions and the stages are as follows:

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Challenge to Show-cause Notice	Challenge to Orders-in-Original
Column No.1	Column No.2
WP No.16891/2022	WP No.12840/2023
WP No.13445/2023	WP No.15832/2022
WP No.15959/2021	WP No.3318/2023
WP No.24822/2022	WP No.14425/2022
WP No.8514/2023	WP No.15018/2022
	WP No.24650/2022
	WP No.12906/2023
	WP No.22063/2022
	WP No.19792/2022
	WP No.25156/2022
	WP No.5896/2023
	WP No.17407/2023
	WP No.11154/2023
	WP No.9765/2022
	WP No.17591/2022
	WP No.1754/2023
	WP No.8858/2023
	WP No.16501/2023
	WP No.7071/2023
	WP No.9906/2023
	WP No.8409/2023
	WP No.8184/2023
	WP No.16170/2022
	WP No.1198/2024
	WP No.14092/2023
	WP No.341/2023

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HC-KAR

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WP No.274/2023
WP No.12003/2022
WP No.13813/2022
WP No.7829/2023
WP No.20282/2022
WP No.19000/2022
WP No.8336/2023
WP No.10238/2023
WP No.6756/2024

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After having heard the matters on various occasions, the Union of India have taken a stand and filed affidavit of the Principal Commissioner, Central Taxes.

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Sri.N.Venkataraman, learned Additional Solicitor General who was present before the court on 27.06.2024 had submitted that they desire that the matters be resolved and accordingly have putforth a proposed mechanism and made certain suggestions in the affidavit filed. The relevant extract of the affidavit filed by the Principal Commissioner of Central Tax, presently holding charge of Bengaluru West and additional charge of Bengaluru East Commissionerate reads as hereunder:

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"I, Kiran Verma, working as Principal Commissioner of Central Tax, presently holding charge of Bengaluru West and additional charge of Bengaluru East Commissionerate, Bengaluru do hereby solemnly affirm and state on oath as follows:

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I am working as Principal Commissioner of Central Tax, Bengaluru West and holding additional charge of Bengaluru East Commissionerate, Bengaluru -560071. I am the concerned person in the above Writ Petition. I am fully conversant with the facts of the case. I am authorized to swear to this affidavit.

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HC-KAR

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1. I submit that in the above batch of cases, the dispute is regarding the Issuance of the Show Cause Notice and demand of Service Tax made on the basis of information provided by CBDT (Central Board of Direct Taxes) as per the assessee's Income Tax returns. The Service Tax Levy is on the taxable services provided by one person or Entity to another, in terms of the provisions contained in the Finance Act, 1994 and the rules made thereunder.

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2. I submit in these batch of Writ Petitions, there are cases pertaining to various categories of Services. It is submitted that a Memorandum of understanding was signed between the Central Board of Direct Taxes and the Central Board of Indirect Taxes & Customs on 21.07.2020 for the data exchange between the two Departments. This Memorandum of Understanding was signed for regular exchange of data which would help both the departments to keep a track on the tax evasion, which have not been reported under the Law.

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3. I submit that all the petitioners have averred that the Show Cause Notices (SCN) were issued without the application of mind and further that the department has not verified the books of account and only on presumption have issued these Show Cause Notices. This averment of the petitioner is denied as false, as the department has taken utmost care by applying its mind and by examining the data received from the CBDT.

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4. I submit that, Section 66B Finance Act, 1994 is the charging Section and Service is defined in Section 65B(44) and taxable Service is defined in Section 65B(51).The assessee is mandated to get the registration and secure compliance of the obligations placed on him by the Act which is prescribed in Chapter V of the Finance Act, 1994 (hereinafter called "the Act") read with the Service Tax Rules, 1994, the CENVAT Credit Rules, 2004, the Place of Provision of Services Rules, 2012, the Point of Taxation Rules, 2011, and the Service Tax (Determination of Value) Rules, 2006. In terms of Section 70 of the Finance Act, 1994, the petitioner is obligated to self-assess their liability and discharge the applicable tax as per the statutory provisions and the entire burden of compliance to statutory provisions is on the assessee themselves. As per the Act, the Show Cause Notice were issued in-terms of Section 73(1) of the Finance Act, 1994, as the services rendered by the assesses appeared to be classifiable as taxable service in terms of Section 65B(44) read with section 66B of the Finance Act, 1994.

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5. I submit that the department received a total number of 49,665 cases from the CBDT and after receipt of

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HC-KAR

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the data the department has verified the same. After preliminary verification, the department initially filtered the cases and where there was no component of Service Tax (sic) dropped 21,549 such cases after detailed verification. Thereafter the department issued Show Cause Notices to the Assessee in the remaining 28,116 cases and called for clarification/explanation. The adjudicating authority during the course of adjudication, after providing a hearing opportunity to the notice, dropped the show cause notices in about 8,816 cases wherever the Service tax component was not found. The adjudicating Authority after providing reasonable opportunity and hearing opportunities proceeded to confirm the show cause notice by way of an Order-In-Original in a total number of 19,300 cases by following the due process of law and following the principles of natural justice. The department in further course of action has also recovered the Service Tax in 587 cases where the service Tax component was confirmed during the adjudication.

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6. I state that there is no prohibition under the provisions of the Finance Act 1994 or under the Service tax Rules to rely upon the third party information that is furnished by the IT department. The information need not be confined only in respect of information provided by the assessee. The object of sharing the data by the C.B.D.T to C.B.E.C (Now C.B.I.C) is to keep track of the statutory compliances by various categories of assessee. Hence there is no irregularity or illegality in relying upon the date obtained from the Income Tax department.

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7. I state that the provisions of the Finance Act 1994 or Service Tax Rules do not contemplate any enquiry before issuing a show cause notice. No such procedure is contemplated either under the act or rules. The only preliminary enquiry to be undertaken was to examine the data obtained from the C.B.D.T, issue of intimations/ letters calling upon the assessees' to furnish their documents which are necessary to determine as to whether the assesses had provided taxable service and whether the activity of the assessee falls under the category of the taxable service or non-taxable service.

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8. I further submit that, in many of the writ petitions the assessees' did not respond to the letters issued by the department seeking documents/information/clarifications. In spite of several reminders there was no response from the assesses. Hence, the department in absence of any other option, issued the Show Cause Notices on the address provided by the CBDT(address as in PAN/ITR).These show cause notices were issued keeping in mind the statutory time

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HC-KAR

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lines. In some cases, even after the issuance of Show Cause Notices, the assessee did not render their reply or failed to produce any document/clarifications.

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9. Therefore, in the absence of any clarifications or documents by the assessee, decisions were taken based on available information and the Order-In-Original were passed. No Show Cause Notices were issued by the department where the clarifications with requisite documents were provided in time. Therefore, the allegations of non-application of mind etc. are factually untenable and cannot be sustained. The following consolidated data is submitted to support the above contention: -

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Table-1

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	BA	NGALORE	ZONE -	DATA
01	02	03	04	05	06	07
Commissionerate's	No. of	No. of	No. of	No. of	No. of	No. of
	cases received from CBDT	cases dropped prior to issuance of SCN	cases where SCNs were issued	cases where SCNs were dropped	cases where SCNs were confirmed	cases where demand is recovered
Bangalore _East _	11,113	6,387	4,726	801	3,925	310
Bangalore North West	4,355	1,465	2,890	952	1,938	44
_Bangalore South _	12,120	4,447	7,673	2,340	5,333	99
Mangalore	3,632	2,847	785	490	295	-
Bangalore North	_5,564 _	1,928	3,636	1,629	_2,007 _	9
Mysore	2,703	843	1,860	441	1,419	32
Belagavi	5,842	2,549	3,293	864	2,429	58
Bangalore West	4,336	1,083	3,253	1,299	1,954	35
*Total*	49,665	21,549	28,116	8,816	19,300	_587 _

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Summary of the same is produced below:

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Table-2

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Sl. No.		Number of Cases	Percentage
(i)	Number of references received from CBDT	49,665	100%
(ii)	Dropped before issuance of Show Cause Notice	21,549	43%
(iii)	Dropped after Show Cause Notice issued and _adjudicated. _	8,816	18%
(iv)	No. of cases confirmed after Show Cause Notice issued after adjudicated	19,300	39%

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HC-KAR

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(v) No. of assesses who 587 agreed to the department's contention and paid the tax liability to the exchequer before/after the issuance of the Show Cause Notice.

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Out of the 49,665 references received from CBDT a major portion i.e. 61% demands have been dropped and only 39% of the cases have been confirmed which shows that quasi-judicial authorities have taken independent decisions on merit. Where ever the demands were confirmed the aggrieved party have an appellate remedy under the Law.

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10. I submit that when 587 assessees have complied with the law & paid up the taxes confirmed, grant of any relief to the present petitioners will put the compliant taxpayers into a disadvantageous position. Therefore, it is submitted that the quasi-judicial authority has taken independent decisions based on facts & law. When department has acted upon CBDT data to examine tax compliance all over the country, granting any relief to the petitioners in Karnataka alone will amount to disadvantage to the tax payers who have complied with the law.

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11. I therefore submit that this Hon'ble High Court may direct the petitioners to appear before the quasi-judicial authorities as the petitions are premature and a robust appellate remedy is provided by the Law.

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12. I submit that the contents stated above are as per records and correct to the best of my knowledge, information and belief which I believe to be true".

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Learned Senior Counsel Sri.V.Raghuraman has also filed a note in response to the proposal and the same is taken on record.

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After hearing both sides and though certain issues were raised, however both sides eventually have made a submission

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HC-KAR

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that the Court can take note of the affidavit and pass appropriate orders.

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Upon suggestion of the court, learned Additional Solicitor General has responded positively and has stated that a team of Officers who are competent to pass orders without reference to the territorial jurisdiction would be constituted and from amongst such team of officers designation would be made and cases allotted in order to pass necessary orders from the stage of post show-cause notice which would be done within a period of three months.

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Needless to state, a bare perusal of all the petitions reveals that the petitioners have raised various contentions which are required to be referred back for consideration by the appropriate authorities so that officers concerned may take note of the same while disposing off the petitions at the stage of post show-cause notice.

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The officers while disposing off the petitions to keep in mind the following:

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Whether petitioners do not qualify under Section 65B(44) of the Finance Act, 1994 ?

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Whether services are covered under negative list ?

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Whether services are covered under the exemption list under the Notification No.25/2012-ST dated 28.06.2012 or under any other applicable Notifications ?

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Whether the person is liable to remit service tax in terms of Rule 2 (1) (d) read with applicable notification?

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HC-KAR

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Whether claims are barred by limitation in terms of the law laid down by the Apex Court ?"

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Accordingly, taking note of the contentions

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raised, also regarding absence of liability and placing reliance on notification No.30/2012, the order-in-original at Annexure-C is set aside. The matter is remitted to the stage of reply to the show cause notice.

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The authorities to take note of the observations

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made in the order dated 03.07.2024 passed in the W.P.No. 11154/2023 and connected petitions, as extracted supra, in specific to the observations at paragraph No.10 of the order, as may be applicable. All contentions are kept open.

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