TaxTMI 
TaxTMI 
2013 (2) TMI 676
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....l, 2004 to August, 2004. (ii) Rs. 21,35,766/- (as detailed in the calculation-sheet enclosed as 'Annexure C2' to the impugned notice) in respect of services rendered between 1st April, 2004 to 9th September, 2004 to various State Electricity Boards. (iii) Rs. 1,02,001/- (as detailed in the calculation-sheet enclosed as 'Annexure C3' to the impugned notice) in respect of services of loading and supervision rendered from 1st April, 2004 to 9th September, 2004. 3. The petitioner, a partnership firm registered under the Indian Partnership Act, 1932, claims to have been engaged by purchasers of coal to coordinate, supervise and liaison supply of coal from various collieries to those purchasers of coal. 4. According to the petitioner on or about 25th July, 2002 the petitioner got itself registered with the Commissioner of Service Tax as provider of the taxable service of clearing and forwarding and started paying service tax at the insistence of the respondent authorities. 5. A show cause notice bearing DGCEI F. No. 132/KZU/KOL/JSR/04/ 1872, dated 13th September, 2004 was issued to the petitioner demanding Rs. 49,27,918/- allege....
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....which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service fax or his agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" had been substituted. Explanation. - Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be." 10. Under the provisions of the Finance Act, 1994, as it stood at the material time any se....
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....rvice tax or his agent. 16. In no circumstances could jurisdiction to issue a show cause notice be exercised after expiry of five years from the relevant date. The entire demand in the impugned show cause notice is ex facie barred by limitation as five years had elapsed from the relevant date, as pointed out by Mr. J.K. Mittal appearing on behalf of the petitioner. 17. Mr. Mittal submitted that, in any case the conditions precedent for invocation of the extended period of limitation as provided in the proviso to Section 73(1) of the Finance Act, 1994 were wholly absent. 18. Petitioner has categorically asserted that the demand of Rs. 4,71,526/- pertains to service rendered under an agreement with TISCO and TATA Ryeson which was the subject matter of an earlier show cause notice dated 13th September, 2004. 19. The petitioner has further asserted that the demand of Rs. 21,35,766/- raised by the impugned show cause notice is the subject matter of an earlier show cause notice dated 18th October, 2004. 20. The petitioner has further contended that the demand of Rs. 1,02,001/- raised in the impugned show cause notice pertains to loading and unloadi....
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....on of sample bills revealed that there were substantial gaps of time between the period during which the taxable services were rendered and the dates of receipt of payments against the bills. However only the figures of the bills were mentioned under the head, 'Income of the firm'. It is alleged that, as most of the payments were received in the half year ending March, 2005, the last date of filing the return fell on 25-4-2005. The date was to be considered as the relevant date for invocation of the extended period of 5 years. 26. On the face of the impugned notice no payment was received after 27th October, 2004 in respect of the taxable services allegedly rendered by the petitioner during the period in question. The respondent authorities are contending that in respect of bills realized in the half year ending March, 2005 the last date of filing of return would fall on 25th April, 2005. The respondent authorities contend that the said date, 25th April, 2005 is the relevant date from which limitation would start running. 27. The respondents have also taken a preliminary objection to the writ petition, inter alia contending that the petitioner had an equally efficac....
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....n authority has no jurisdiction to issue a show cause notice which is barred by limitation. In the State of Punjab v. Bhatinda District Cooperative Milk P. Union Ltd. reported in 2007 (217) E.L.T. 325 (S.C.) = (2007) 11 SCC 363, the Supreme Court held that the question of limitation being a jurisdictional question, a writ petition challenging the validity of a notice of revision of an order of assessment of sales tax, on the ground of the same being barred by limitation, would be maintainable, notwithstanding an alternative statutory remedy. 35. It is well-established that where the jurisdiction of an authority depends upon a preliminary finding of fact, this Court in exercise of its writ jurisdiction is entitled to examine whether the findings on jurisdictional facts are correct or not. This proposition finds support from the judgment of the Supreme Court in the State of Madhya Pradesh & Ors. v. D.K. Yadav reported in AIR 1968 SC 1186. 36. In M/s. Raza Textiles Ltd., Rampur v. The Income Tax Officer, Rampur reported in AIR 1973 SC 1362, the Supreme Court held that no authority, much less a quasi judicial authority, could confer jurisdiction on itself by deciding a ....
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....sons for that belief. The belief must be held in good faith : it cannot be merely a pretence. If it be asserted that the Income Tax Officer had reason to believe that income had been under-assessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justiciable. The expression therefore predicates that the Income Tax Officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is founded, and not merely a belief in the existence of reasons inducing the belief; in other words, the Income Tax Officer must on information at his disposal believe that income has been under-assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief, be it said, may not be based on mere suspicion: it must be founded upon information." 40. This Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily interfere with a show cause notice. However, when the show cause notice is without j....
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....ears is to be computed by back calculation from the date of the show cause notice. The show cause notice having been issued on 23rd April, 2010 there could be no question of inclusion of any claim for any period prior to 30th March, 2005. 47. Section 73(1) of the Finance Act, 1994 being substantially in pari materia with Section 11A(1) of the Central Excise Act, 1944 the judgments of the Supreme interpreting Section 11A(1) of the Central Excise Act, 1944 including Bajaj Auto (supra), operate as a binding precedent for interpretation of identical provisions of Section 73(1) of the Finance Act. 48. Under Rule 6 of the Service Tax Rules, 1994 as they stood at the material time, service tax was to be paid to the credit of the Central Government by the 5th day of the month following the calendar month in which payment towards the value of the taxable service was received. In case of electronic transfer through internet banking, payment could be made within the 6th day of that month, that is one day later. Limitation would thus start running from the seventh day of the month following the calendar month in which payment for the taxable service had been received by the pet....
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....) Ltd. v. Collector of Central Excise reported in 2003 (153) E.L.T. 14 (S.C.). 55. Contravention simpliciter of the provisions of Chapter V of the Finance Act, 1994, as amended from time to time, does not in itself attract the proviso to Section 73(1) of the said Act. For invocation of the extended period of limitation, the contravention must be coupled with intent to evade payment of service tax. 56. A show cause notice issued upon invocation of the extended period of limitation as provided in the proviso to Section 73(1) on the ground of contravention of Chapter V cannot be sustained in law, unless the authority issuing the show cause notice is able to demonstrate intention to evade payment of Service Tax on the part of the assessee. 57. No case has been made out in the impugned show cause notice of any fraud, collusion or misrepresentation. There is a vague assertion of suppression of facts and contravention of Chapter V with intent to evade payment of Service Tax. 58. In Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut reported in (2005) 1 SCC 745 = 2005 (188) E.L.T. 149 (S.C.), the Supreme Court held that mere failure to declar....