2014 (5) TMI 460

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....he show cause notice what was proposed was to include the income towards management services u/s 73 of the Finance Act, whereas the final order is passed treating the income for which no show cause notice was issued and therefore the order could not be sustained and allowed the appeal filed by the assessee. 2. The material facts leading up to this appeal are as follows : A show cause notice was issued to the respondent on 28-7-2005 on verification of the records since it was found that the respondent was running a set of taxable services viz., Cargo Handling Services, Marketing Services, Maintenance or Repair Services, Management Consultancy Services, Advertising Agents Services, Business Auxiliary Services to M/s. Nectar and had bee....

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....994 for suppressing value of taxable service." 3. In response to the show cause notice, reply was given by the respondent contending that the respondent was undertaking transportation service and was not running any management and consulting services as proposed in the show cause notice. The original authority by order dated 19-12-2005 held that in view of explanation offered by the assessee though the income was not assessable under management consultant service, the same was subject to tax on management auxiliary service and accordingly imposed tax and interest and penalty u/s 76, 77 and 78 of the Act. Being aggrieved by the said order, appeal was preferred by the respondent before the Tribunal contending that the order-in-original ....

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....), (d) and (e) of the Finance Act, 1994? 3.     Whether the Tribunal is justified in holding that mere non-quoting of sub-section of Sec. 73 of Finance Act, 1994 in the demand notice can be held to be not invoking the clause under Sec. 73(1) of the Finance Act, 1994?" 4. Learned counsel for the appellant submitted that a broader view has to be taken since it is mentioned in the show cause notice that the amount is chargeable u/s 73 of the Act where the Service Tax is imposed under the head 'Business Auxiliary Service' and not 'Management Consultancy Service' as proposed would not make any difference as the respondent has admittedly not paid tax and however he is liable to pay the tax and therefore the order of the....