TaxTMI 
TaxTMI 
2023 (4) TMI 1194
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....he period from 2006-2007 to 2007-2011. The appellant did not respond to the letter and therefore, the officers visited the premises of the appellant and a panchnama dated December 24, 2011 was drawn in the presence of Satish Kumar Pachori, Manager and two independent witnesses. The statement of Satish Kumar Pachori was also recorded on December 22, 2011. He stated that appellant provides services in relation to birthday parties, kitty parties and marriage parties and has the ability to arrange parties for a group comprising between 700 to 800 people and for this purpose an advance of Rs.10000/- to Rs.25000/- is taken. He also stated that the frequency of such bookings is 8 to 10 per month. 3. A show cause notice dated April 16, 2013 was, thereafter, issued to the appellant and the relevant portions of the show cause notice are reproduced below: "3. Upon scrutiny of the records viz. daily receipt and expenditure sheet, payment vouchers, etc., it is observed that the Noticee have commenced their business operation during the financial year 2008-2009 onward and they have received huge amount from various clients in 'Cash' as well as by 'Cheque'. The details of the amount r....
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....t business and Bakery business. Apart from the above income, the Noticee has shown "Other Income" amounting to Rs.8,32,03,871/- in their Daily Receipt and Expenditure Sheets. Shri. Ashwin Sethi, Director or Shri. Satish Kumar Pachaori, Manager, did not furnish any details or documents as to on what account, such "other income" was received by them. Their activity was limited to Restaurant business and Bakery business and letting out of halls, rooms, etc., of the Restaurants as stated by Shri Satish Kumar Pachaori, Manager and Shri. Ashwin Sethi, Director in their Statement dated: 24-12-2011 and 03-04-2012 respectively. Since, they have already recorded their income from the Restaurant business and Bakery business and have declared the same to the Commercial Tax Department, the remaining income amounting to Rs.8,32,03,871/- was on account of letting out of halls, rooms, etc., for consideration for organising social, official or business functions. Thus, it is evident that such income pertains to the amount collected/received from their clients on account of letting out the halls, rooms, etc., for a consideration for organising social, official or business functions during the y....
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....-12 (Annexure-J1 to J4); (All the above mentioned documents available with the Noticee) 6. The appellant filed a reply to the show cause notice and stated that it did not book any space for organizing parties. In fact, the appellant only booked tables for the clients/customers for providing restaurant service, irrespective of whether the clients/customers booked the tables for birthday or kitty party. The appellant also stated that it had not let out any room to guests. There were only two to three rooms inside the premises which were used by the staff and these rooms may have been given to some guests for the purpose of keeping specific foodstuff which the customers may be bringing with them to serve at the time of dinner. 7. The Commissioner, by order dated January 20, 2015, confirmed the demand with interest and penalty. The relevant portion of the order passed by the Commissioner is reproduced below: "39.2 xxxxx The Noticee's defence is mainly based upon the plank that they are operating a Hotel/Restaurant and serving food charged on plate basis and this the service defined as mandap keeper under the Finance Act'1994 not being involved, they are ....
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....sumed from the Notice by the investigating officers under panchnama dated 24-12-2011 and shown in Annexure A contains the following description; (i) Bills relating to mandap keeper service pages 1-439 (ii) Bills relating to mandap keeper service pages 1-157 (iii)Bills relating to mandap keeper service pages 1-245 Thus the aforesaid evidence clearly point to the fact that the Notice had been engaged in rendering service under the category of mandap keeper. 40.1 Therefore, in the backdrop of the aforesaid facts and recorded statements, Notice's records resumed under panchnama, now while replying to the Show Cause Notice, the Notice's negation regarding rendition of mandap keeper service is not tenable and legally also not acceptable. xxx xxx xxx 40.2.3. xxxxxxxx The plea of the Notice in their defence that whatever documents are made basis for allegation by the Deptt. is actually not relied upon by the Deptt., and record No.01 to 03 and 08 to 12 alleged to be related to mandap keeping services have been returned to the Notice is unfounded in as much as Annexure A to the panchnama dated 24-12-2011 drawn in the proceedings containing....
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....the 'mandap keeper' as follows: "Section 65 (67): "mandap keeper" means a person who allows temporary occupation of a mandap for a consideration for organising any official, social or business function; Explanation.- For the purposes of this clause, "social function" includes marriage;" 14. Section 65 (105) (m) of the Finance Act makes "mandap keeper" service taxable and it is as follows: "Section 65 (105) (m): "taxable service" means any service provided or to be provided - (m): to any person, by a mandap keeper in realtion to the use of mandap in any manner including the facilities provided or to be provided to such person in relation to such use and also the services, if any, provided or to be provided as a caterer." 15. A 'mandap keeper' is, therefore, a person who allows temporary occupation of a mandap for a consideration for organizing any official, social or business function. 'Mandap' means any immovable property and includes any furniture, fixtures, light fittings and floor covering let out for a consideration for organizing any official, social or business function. Any service is provided or to be provided to any person by a man....