TaxTMI 
TaxTMI 
2018 (11) TMI 182
X X X X Extracts X X X X
X X X X Extracts X X X X
....cutta High Court Notes page 53 (Avery India Ltd. v. Union of India) in support of his contention. The show-cause notices have invoked the extended period of limitation. Such invocation is incorrect. The authorities could not have invoked the extended period in the facts of the present case. The petitioner is not guilty of suppression of any fact nor is the petitioner guilty of evading tax. The jurisdictional facts, required for invoking the extended period of limitation, are absent in this case. Every fact was known to the authorities by virtue of the documents disclosed in respect of the proceedings under the show-cause notice dated April 17,2013. He relies upon 2006 Volume 11 Supreme Court Cases page 573 (Nizam Sugar Factory v. Collector of Central Excise, A.P.), Simplex Infrastructures Ltd. (supra) and 2015 Volume 37 S.T.R. page 451 (Cal.) (Naresh Kumar & Co. Pvt. Ltd. v. Union of India) in support of his contention. 3. Learned Advocate for the petitioner draws the attention of the Court to the two impugned show-cause notices. He submits that, the impugned show-cause notices refers to a circular issued by CBEC dated August 12, 2016. He submits that, such circular claims to prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e also refers to the Place of Provision of Services Rules, 2012 as well as Section 2(f) thereof. He submits that, the previous show-cause notice was in respect of a different period and, therefore, the petitioner cannot claim that, the petitioner had made over all the materials to the authorities, to disentitle the authorities from invoking the extended period of limitation. 6. The issues that arise for consideration in the present writ petition are as follows:- (i) Is any of the two impugned show-cause notices without jurisdiction ? (ii) Is the impugned circular dated August 12, 2016 of CBEC bad in law ? (iii) To what relief or reliefs are the parties entitled to ? 7. The petitioner is a sole proprietorship concern. It is an assessee under the Service Tax Act. As an assessee it suffered a show-cause cum demand notice dated April 17, 2013. Such show-cause notice was in respect of the period from October 2007 to March 2012. Such show-cause notice resulted in an order in original. The petitioner also suffered three show-cause notices thereafter. It suffered a show-cause notice dated April 3, 2017 which is yet to be adjudicated upon. It suffered two other show-cause notices wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pect of the first show-cause notice. The same was held to be impressible. Here, the fact scenario is different. In the present case, there is no possibility of two orders of assessment on the basis of the two impugned show-cause notices as the two show-cause notices will be adjudicated upon by the same authority. None of the two impugned show-cause notices have resulted in an order in original so as to debar the adjudication in respect of the other. 9. The authorities have invoked the extended period of limitation in the impugned show-cause notices. The authorities are entitled to do so subject to the jurisdictional fact that, the assessee is guilty of suppression, is available. In the present case, the petitioner contends that, it is not guilty of suppression as it had disclosed its accounts in response to the show-cause notice dated April 17, 2013. As noted above, the show-cause notice dated April 17, 2013 relates to a different period. Disclosure of the books of accounts in such proceedings, cannot be construed to be a true and full disclosure of accounts for the subsequent period for which the two impugned show- cause notices have been issued. Nizam Sugar Factory (supra) in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation. In light of the evidence coming to the authorities, on the basis of the statement of the petitioner and otherwise, the petitioner is obliged to face the proceedings emanating on the basis of the two show-cause notices. The reasons are a plausible view on the subject matter. A Writ Court need not interfere when the view taken is plausible. 12. In view of the discussion above, the first issue is answered in the negative and against the petitioner. There is no lack of jurisdiction in issuing any of the two show-cause notices. 13. Place of Provision of Services Rules, 2012 was framed in exercise of powers conferred under Sections 66C(1) and 94(2)(hhh) of the Finance Act, 1994. It came into effect on July 1, 2012. Rule 2(f) of the Rules of 2012 defines an intermediary. An intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service or a supply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account. Rule 10 of the Rules of 2012 deals with the place where the provision of goods transportation services is required to be made. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rnment in its administrative capacity is not entitled to issue directives to any authority exercising quasi judicial function, to interpret the main notification in a particular manner. 14. In the facts of the present case, the impugned circular puts the authorities on notice that, there can be two kinds of freight forwarders as noted therein and for the reasons given, the tax incidence for each of them would be different. By the impugned circular, an authority is required, after considering the individual case on merits, to identify the category in which the freight forwarder falls and then calculate the tax incidence accordingly. The impugned circular cannot be read to have imposed any restrictions or any authority or to be contrary to the provisions of any statute or to have whittled down any provision of any Rule or being contrary to any Rule or to determine any show-cause notice in any particular way. The impugned circular requires the authorities to look into the accounts of a freight forwarder in the light of the two nature of businesses noted therein and arrive at the tax incidence. Suchitra Components Ltd. (supra) is of the view that, a beneficial circular can be applied ....