TaxTMI 
TaxTMI 
2020 (8) TMI 43
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....s, namely, Marry Lands and Dayton Heights. Specifically, the differential tax computed for the period December 2008 to March 2009 (Period 1) was a sum of Rs. 19,15,491/-. iii) A second notice dated 09.2.2012 (SCN 2) was thereafter issued calling upon the petitioner to remit differential service tax for the same period as covered in SCN 1, viz. December 2008 to March 2009 (vide Annexure to the SCN) and April 2009 to March 2010 (vide Annexure 1 to the SCN) and in respect of the same two projects. The differential under the Annexure was computed at a figure of Rs. 19,18,375/- and the differential under Annexure 1 was computed at Rs. 9,98,350/-, the total demand being Rs. 29,16,716/-. No month-wise break-up of the demand is available as regards Annexure 1. iv) As against the demand proposed in SCN 1 for an amount of Rs. 1,69,52,423/-, the petitioner had remitted an amount of Rs. 99,94,773/- and the aforesaid deposit/remittance was appropriated in Order -in-Original (OinO 1) dated 30.01.2013 as against the total demand. v) Proceedings under SCN 2 were initiated by a personal hearing dated 28.02.2016, four (4) years after issue of the notice and the pe....
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....of computation of the relief and (2) stipulating that the amount payable by an assessee shall take into account the amount of deposit made during enquiry/audit/investigation or pre-deposit made prior to institution of any statutory appeal. xi) The petitioner filed an appeal before the Commissioner of Service Tax (Appeals) challenging OinO 2 as well. Since, according to the petitioner, the demand raised in OinO 2 dated 14.10.2016 was a duplication of the demand already raised under OinO 1, it did not effect the statutory pre-deposit, as a result of which, the appeal was returned as not maintainable. xii) The return of the appeal was challenged by the petitioner in W.P.No.3167 of 2017 and vide order dated 09.02.2017, this Court directed the Appellate Commissioner to consider the claim of the petitioner regarding duplication of demands set out under a representation dated 16.12.2016 and pass orders within a period of two (2) weeks from date of receipt of the Courts' order. This order was not complied with by the revenue. xiii) Since the Legacy Scheme was announced during the pendency of the aforesaid appeal, the petitioner availed of the Scheme in respect of....
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..... The rejection of the petitioners' declaration under the Scheme even prior to adjudication on this point, is prima facie incorrect. 5.In the light of the aforesaid, the Commissioner of Service Tax (Appeals-II), Newry Towers, 2054, I Block, 2 nd Avenue, 12 th Main Road, Anna Nagar West, Chennai - 600 040 is impleaded suo motu as R2 in this Writ Petition. 6.Mr.Ramasamy, learned Junior Panel Counsel accepts notice for R2 and seeks four (4) weeks' time to obtain instructions and file a counter. 7.A direction is issued to R2 to consider and dispose the representation of the petitioner dated 16.12.2016 after hearing the petitioner, who will appear before him on Tuesday, the 21 st of January, 2020 at 10.30 a.m. without expecting any further notice in this regard. 8.Let necessary orders be passed on the representation within a period of four(4) weeks, i..e, on or before 11.02.2020. List on 12.02.2020 for production of order. Impugned Form SVLDRS -III dated 06.12.2019 is stayed till then 4. In compliance of the direction issued above, R2 disposed the representation of the petitioner vide order dated 27.01.2020. The issue framed for considerati....
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.... 14001842 40087665 54989507 22655568 Jan.2010 14573390 17210191 31783581 13009484 Total 72945982 169536396 2424832378 9990274 B) Land Owner's Portion : Rs. 69,17,653/- TOTAL OF (A) + (B) : Rs. 1,69,07,927/- Two Annexures to the SCN No.20/2012 dated 9.2.2012 are reproduced below: ANNEXURE MONTH WISE INCOME AND SHORT PAYMENT OF SERVICE TAX YEAR 2008-09 Xxxxx A.A.O./CREA VIII ANNEXURE I MONTH INCOME RECEIVED AFTER ADJUSTING LAND COST (RS.) INCOME OFFERED FOR SERVICE TAX (RS.) AMOUNT NOT SHOWN IN ST-3 RETURN (RS.) APRIL 08 1,48,00,100/- 1,48,00,100/- ---- MAY 08 5,03,54,000/- 5,03,54,000/- ---- JUNE 08 1,20,70,000/- 1,20,70,000/- ---- JULY 08 3,19,07,325/- 3,19,07,325/- ---- AUGUST 08 2,11,50,000/- 2,11,50,000/- ---- SEPT 08 45,20,000/- 45,20,000/- ---- OCT 08 44,01,500/- 44,01,500 ---- NOV 08 31,20,000 31,20,000/- ---- DEC 08 82,12,500/- Nil 82,12,500/- JAN 09 42,47,500/- 1,95,000/- 40,52,500/- FEB 10 1,52,47,500/- Nil 1,52,47,500/- MAR 10 1....
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....espect of Show Cause Notice No.443/2011 dated 12.10.2011 and Show Cause Notice No.20/2012 dated 9.2.2012 in as much as they pertain to the period December 2008 to March 2009, involving service tax liability of Rs. 19,18,375/- has been clearly duplicated. The balance amount of demand of Rs. 9,98,350/- as per the Show Cause Notice No.20/2012 dated 9.2.2012, covers the period April 2009 to March 2010 allegedly on account of the difference between the gross income as per the revenue collections and the income as shown in the ST3 Returns. In the absence of any month wise quantification of demand duplication with respect to the amount is not ascertainable. In view of the above, the demand of service tax to the extent of Rs. 19,18,375/- out of the total demand of Rs. 29,16,716/- in the SCN No.20/2012 dated 9.2.2012 is clearly duplicated and the appellant has already paid the same which has also been appropriated in the Order-in-Original No.5/2013 dated 30.01.2013. 5. On the basis of the aforesaid discussion and finding, the order passed by R2 is as follows: ORDER 12. (i) Therefore, I am of the considered opinion that the amount paid by the appellant to the extent of Rs. 19,....
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....r of R2, i.e., Commissioner of Service Tax (Appeals- II) dated 01.02.2020 accepting the contention of the petitioner that there is duplication to the extent of Rs. 19,15,491/- was in violation of the principles of natural justice, taken without hearing R1. At the outset, there is no provision under Chapter V of the Finance Act 1994 requiring the Appellate Commissioner to hear the Revenue while deciding a first appeal. Section 85(5) of the Finance Act, that stipulates the procedure to be followed by R2 in appeal, does not require him to extend an opportunity of hearing to the revenue. The provision moreover refers one to the provisions of Section 35 of the Central Excise Act 1944 (CE Act) that governs all matters in regard to a first appeal under service tax law as it would those appeals under central excise law. Section 35(1) specifically states that 'the appellant' shall be heard in deciding the appeal. By comparison, in hearing an appeal by the Tribunal, Section 36 of the CE Act states that the Tribunal shall hear 'the parties to an appeal' in deciding an appeal. 8. Secondly, the direction to R2 to dispose the petitioners' appeal was issued in the presence of the panel coun....
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....ng to the revenue, there is an excess of a sum of Rs. 15,18,561/- in regard to OinO1 that, by applicationof Section 130(2) shall neither be refunded nor utilised towards any other demand. This argument is also misconceived. The petitioner, as confirmed by the order of R2, is right about the double demands raised for Periods 1 and 2. Thus, as far as the demand of Rs. 19,18,375/- is concerned, it ought not to have been raised at all. The remaining demand of Rs. 9,98,350/- corresponding to Period 2 also stands covered/telescoped by the amount of Rs. 80,74,333/- already paid for the same period earlier. In stating this, I have taken note of the position that the total taxable value of the two projects under both SCN 1 and 2 is identical. (See the Annexures to the SCNs). 13. The conflicting computations of the petitioner and respondents are as extracted below: Petitioner's declaration under Scheme Tax Dues Rs. 29,16,716.00 Tax Relief Rs. 20,41,701.00 (70%) Tax dues less tax relief Rs. 8,75,015.00 (30%) Pre-deposit/Other deposit Rs. 19,15,491.00 Tax dues under SVLDRS Rs. 0 Revenue's computation under impugned order S.No. Categor....