TaxTMI 
TaxTMI 
2014 (5) TMI 261
X X X X Extracts X X X X
X X X X Extracts X X X X
....hen not allowing the application for rectification of mistake though the written submission/synopsis filed by the petitioner were not considered by the Tribunal while rejecting the appeal is sustainable and correct in facts of this case? C. Whether the petitioner was liable for penalty only because of late payment of Service Tax in the facts of this case?" 2. Brief facts necessary for considering this appeal are as follows : 2.1 The appellant is a sole proprietor concern engaged in the business of providing security services. The petitioner obtained a registration certificate as required under the Finance Act for providing such security services. Three show cause notices were issued to the petitioners for short payment of Service Tax as also for recovering interest and imposing penalties. Total demand made was of Rs. 8,79,750/-. This amount was deposited by three different challans however, this demand had been challenged by the appellant herein before the assessment Commissioner who, vide his order dated 8-7-2009, confirmed the Service Tax liability with interest and penalty against the petitioner. 2.2 Being aggrieved by the same, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppropriate that application for rectification of mistakes require consideration. Accordingly, the application for rectification of mistake is rejected." 2.5 Aggrieved by this rejection, present appeal is preferred raising aforementioned substantial questions of law. 2.6 We have framed following substantial question of law for determining the lis between the parties : "Whether the orders of Commissioner (Appeals) and of CESTAT (Tribunal) of not allowing additional grounds raised by the appellant based on relevant facts on record and law are contrary to law?" 3. We have heard the learned counsel Mr. Dave for the appellant who has vehemently submitted that before the Commissioner (Appeals), the appellant raised three grounds which are the legal contentions and which could be raised before any authority at any stage. There was no bar nor could there be any hitch under such law in raising such legal contentions. Instead of considering those contentions of the appellants, the Commissioner (Appeals) chose not to adjudicate relying wrongly on the decision of the Apex Court. He urged further that there were factual details already available on the record to substantiate h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing authority or an officer authorized in this behalf by the said authority has been allowed a reasonable opportunity, - (a) to examine the evidence or document or to cross-examine any witness produced by the appellant; or (b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1). (4) Nothing contained in this rule shall affect the power of the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal." 5.2 This rule, if examined closely, permits under certain circumstances, the Commissioner (Appeals) to take on record and examine additional evidence produced before it and, once those circumstances exist for so permitting evidences, the only requirement would be to allow a reasonable opportunity to the other side to produce any evidence in rebuttal. Eventualities narrated under the law which pave a way for additional evidence are : (i) denial to admit evidence by Assessing Officer (ii) existence of sufficient cause which prevented such admission, when called upon by Assessing Officer ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stead has held that no satisfactory reasons have been provided by the appellant for entertaining such additional submissions, by placing reliance on the decision of the Apex Court rendered in case of Sangvi Re-conditioners Pvt. Ltd. v. Union of India (supra). Tribunal as mentioned hereinabove, in its very brief order dated 1-7-2011 has emphasized only on the late payment of the Service Tax and repeated defaults on part of the appellant and furthermore, it chose not to deal with any of these contentions in the rectification of mistake application also where the very ground has been reiterated and submissions raised by the appellant have not been dealt with. 8. The Apex Court in Sangvi Reconditioners Pvt. Ltd. v. Union of India (supra) has in fact held that there is no bar in entertaining the additional ground involving pure questions of law before the High Court or the Supreme Court, however, misreading this authority, the additional grounds based on relevant facts existing on record, were held not to be permissible. 9. It is also relevant to make a mention at this stage of some of the observations made in case of R.K. Herbals v. State of Tamil Nadu (supra) wherein the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts as found by the authorities below and having a bearing on the tax liability of the assessee and therefore, remitted the matter to the Tribunal for consideration of the new grounds raised by the assessee on merits. 6. In (2002) 253 ITR 426 (cited supra), the Division Bench of this Court held thus : "1. The first part of the second question concerns the correctness of the Tribunal's view that the additional ground could be allowed to be raised for the first time before it. The view of the Tribunal is correct. The Apex Court has, in the case of National Thermal Power Co. Ltd. v. CIT - (1998) 229 ITR 383, held that it is within the jurisdiction of the Tribunal to entertain a new ground for the first time, if the facts required for answering the new plea are available on record. The part of the question is answered against the Revenue." 7. Section 36(3) of the Tamil Nadu General Sales Tax Act gives the Tribunal the power "to pass orders as it thinks fit". The words are the same as those used in Section 254 of the Income Tax Act which is extracted by the Supreme Court in National Thermal Power Corporation case. So, we are of the opinion that the Tribunal shall consid....