TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 291
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....14-15 to 2017-18. 3. The petitioner is engaged in the business of construction of residential complexes, schools, government buildings, parking facilities etc. on works contract basis. Undisputedly, the said activities fall within the definition of 'works contract' under Section 65B (54) of the Finance Act. 4. A show cause notice dated 23.04.2019, was issued to the petitioner in respect of its liability to pay service tax for the aforesaid period. This show cause notice dated 23.04.2019 was premised on the information received from the Gurugram Zonal Unit of the Directorate General of GST Intelligence (DGGI) and the investigation carried on by the authorities pursuant, thereto. The Revenue Authorities had received information to the effect that the petitioner had constructed several commercial and residential projects, and had paid the service tax on the 'works contract' by availing the benefit of Notification No. 24/2012-S.T. and Notification No. 30/2012-S.T. According to the Revenue Authorities, the petitioner had wrongly declared part of its taxable income as exempted from service tax, and had not paid the service tax correctly. Based on the said information, investigations we....
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....er cent. of the tax dues; (ii) the amount of duty is more than rupees fifty lakhs, then, forty per cent. of the tax dues; (iii) in a return under the indirect tax enactment, wherein the declarant has indicated an amount of duty as payable but not paid it and the duty amount indicated is, - (A) rupees fifty lakhs or less, then, sixty per cent. of the tax dues; (B) amount indicated is more than rupees fifty lakhs, then, forty per cent. of the tax dues; (d) Where the tax dues are linked to an enquiry, investigation or audit against the declarant and the amount quantified on or before the 30th day of June, 2019 is - (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; (e) where the tax dues are payable on account of a voluntary disclosure by the declarant, then, no relief shall be available with respect to tax dues. (2) The relief calculated under sub-section (1) shall be subject to the condition that any amount paid as pre-deposit at any stage of appellate proceedings under the indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted whe....
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.... of Section 129(1) of the Finance (No. 2) Act, 2019, the issuance of a Discharge Certificate is conclusive of the matter and the time period. 12. It is the petitioner's case that in terms of Section 129 of the Finance (No. 2) Act, 2019, no proceedings can be initiated in respect of service tax for the period 2014-15 to 2017-18 and no further demands can be raised. The petitioner claims that the impugned show cause notice is, thus, liable to be set aside. 13. The impugned show cause notice indicates that it is premised on the basis that the petitioner had issued certain invoices for free of cost (FOC) material to one of its employers - M/s Charms India Pvt. Ltd. According to the Revenue, the petitioner's authorised representatives had not disclosed that the petitioner had issued FOC bills during the relevant period. According to the Revenue, the value of FOC material provided by M/s Charms India Pvt. Ltd. to the petitioner was chargeable to service tax to the extent of 50%. It is also the Revenue's case that the authorised representative of the petitioner had made a false and misleading statement by stating that the petitioner had issued only running bills during the relevant peri....
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....the issue of the discharge certificate with respect to a matter for a time period shall not preclude the issue of a show cause notice, - (i) for the same matter for subsequent time period; or (ii) for a different matter for the same time period; (c) in a case of voluntary disclosure where any material particular furnished in the declaration is subsequently found to be false, within a period of one year of issue of the discharge certificate, it shall be presumed as if the declaration was never made and proceedings under the applicable indirect tax enactment shall be instituted." 18. We are unable to accept the contentions advanced on behalf of the Revenue. The assumption that Section 129(2)(c) of the Finance (No. 2) Act, 2019 is applicable, is ex-facie erroneous. The petitioner had not made a declaration under the category of 'Voluntary Disclosure'. The petitioner's declaration was under the category of 'Litigation'. This was because the concerned authority had issued a show cause notice dated 23.04.2019, which was pending adjudication. 19. As stated above, the Scheme has a wide sweep. It not only covered cases where a dispute was pending but it also offered immunity to asse....
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....C (free of cost) material supplied by the employer (in this case M/s Charms India Pvt. Ltd.). And second, that NOIDA is not a corporate entity and therefore, the petitioner is liable to bear the entire service tax liability. 24. Clearly, the assumption that the petitioner is liable to pay tax on FOC material supplied by M/s Charms India Pvt Ltd. is ex facie erroneous. The said issue is covered by the decision of the Supreme Court in Commissioner of Service Tax & Ors v. Bhayana Builders Private Limited & Ors.: (2018) 3 SCC 782. The Supreme Court in the said judgment held that on first principle, the value of free supply items, which are not a part of the contract between the service provider and the service recipient has no relevance in determination of the value of taxable services. Para 16 of the said decisions reads as under: "16. In fact, the definition of "gross amount charged" given in Explanation (c) to Section 67 only provides for the modes of the payment or book adjustments by which the consideration can be discharged by the service recipient to the service provider. It does not expand the meaning of the term "gross amount charged" to enable the Department to ignore the ....
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.... corporate." Thus, NOIDA has been constituted as a body corporate under the said statute. In view of the express provisions of Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976, the premise that NOIDA is not a body corporate is fundamentally flawed. 28. The Revenue has proceeded on an ex-facie erroneous premise that NOIDA is not a body corporate on the basis that NOIDA had explained that it was neither a company registered under the Companies Act, 1996 nor a business entity registered as a body corporate. NOIDA does not require to be registered under any Act as a body corporate, as it has been constituted by the Uttar Pradesh Industrial Area Development Act, 1976 as a body corporate. Thus, clearly the Revenue has misunderstood the response received from NOIDA as is reflected in the impugned show cause notice. 29. The Supreme Court in the case of Commissioner of Income Tax (TDS) Kanpur & Anr. v. Canara Bank: (2018) 9 SCC 322 had explained the difference between an entity, which is not created by a statute but is created in accordance with the provision of the statute and an entity that has been established and bought into existence by a statute. In case of a com....
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....) The Managing Director, U.P. State Industrial Development Corporation-ex official. Member (f) Five members to be nominated by the State Government by notification. Member (g) Chief Executive Officer. Member-Secretary (4) The headquarters of the Authority shall be at such place as may be notified by the State Government. (5) The procedure for the conduct of the meetings for the Authority shall be such as may be prescribed. (6) No act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in or defect in the constitution of the Authority. 32. When we compare the provisions of Section 3 of the 1976 Act with those of the State Financial Corporation Act, 1951, it is clear that the establishment of corporation in both the enactments is by a notification by the State Government. In the present case, notification has been issued in exercise of power of Section 3, the Authority has been constituted. It is useful to extract para 2 of the Notification dated 12-4-1976: "2. The Governor is hereby further pleased, in exercise of the powers under Section 3 of the said Act, to constitute, in respect of the abovementioned industrial development are....