Interpretation of Limitation as per Section 73 of FA 94

[Guest]

Limitation as per FA S. 73(1) is one year (after 2012 it is 18 months) from relevant date.  Further relevant date as per S 73(3) is  receipt of information of  payment  (date of challan?) and as per S.73(6) it is date of filing return or last date prescribed for filing return and in all other cases date of payment of duty         laid  down in  Rules. Service tax rule 6 lays down periodicity of payment and filing of return . I am in a dispute with revenue as to how to apply the limitation of one year (period is Oct 04  to  Mar 05 for which SCN was issued on 17/4/06 but  received by me on 25/4/06). As per the interpretation of revenue the return for period Oct 04 to Mar 05 is filed on 21/4/05. Therefore SCN given before 21/4/06 demanding duty for entire period i.e. Oct 04 to Mar 05 is within normal limitation. Thus in effect Revenue is availing one and half year period as normal limitation. My contention is that  frequency of filing return or payment of tax is administrative instruction given in rules. Rule can not be interpreted in a manner to override the basic provision of one year limitation and expand it to one and half year. In other word return being merely a report regarding details of payment of duty, limitation is to be calculated from date of payment. i.e. For quarter Jan to Mar 05 SCN must be issued before Mar 06  and for quarter Oct 04 to Dec 05, SCN must be given before Dec 05. Can any one enlighten me with good case laws to defend my case.

Major Prakash Deval (Retd)

[Brijesh Verma]

The Act states the relevant date as 

(6) For the purposes of this section, "relevant date" means, -

      (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid -

            (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed;

            (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;

            (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder;

      (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment thereof;

      (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.

 So your case will fall under either sec 73(6)(i)(a) or (b) and not under (c)

AI Summary

Relevant date under limitation: filing of a periodical return starts the limitation period, not the payment date. The key operative rule: where a periodical return is required, the 'relevant date' for limitation is the date the return is filed, or if no return is filed, the last date for filing; in other cases the date of payment governs. The dispute therefore falls under the return filing construction rather than the payment date.