TaxTMI 
TaxTMI 
2024 (5) TMI 466
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....mt. Vanita K.R., Advocate), (By Sri Amit A. Deshpande, Advocate), (Smt. Preetha Mahadevan, Advocate For R2 To R4; Sri B. Pramod, Advocate For R1) ORDER 1. In all these writ petitions, Practicing Advocates have called in question the show-cause notice, and in some cases order in original and recovery notices issued by the respondent Central Tax Department whereby Service Tax is sought to be levied. 2. In light of the similar contentions raised, writ petitions are clubbed and are taken up together and decided by a common order. 3. The table reflecting the relief sought for is as below: Sl. No. W.P. No. Prayer Sought 1. W.P. No. 26096/2022 A. Issue a Writ of certiorari quashing the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure A. B. Issue a Writ of certiorari quashing all proceedings under the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure-A. 2. W.P. No. 10865/2021 A. Issue a writ of certiorari to quash impugned Show Cause Notice dated 27.04.2021 bearing SCN No. 123/2021-22 JC and having Digital Iden....
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....y the Service Tax or liable to be registered under Service Tax, as petitioner is under the Reverse Charge Mechanism, in so far as the Petitioner is concerned. 4. The contentions raised by both sides are referred to while analysing contentions of the parties for the purpose of maintaining brevity in the order. 5. Insofar as legal services rendered by individual advocates or firm of advocates, the person liable to pay service tax in terms of the Service Tax Rules, 1994 [for short 'Service Tax Rules'] namely Rule 2 (1) (d) (D) (II) is the individual advocate or firm of advocates who offer legal services. 6. In terms of Notification No. 25/2012-ST dated 20.06.2012 passed in exercise of power under Section 93 (1) of the Finance Act, 1994 the Central Government has petitioner exempted certain taxable services from the whole of the service tax leviable under Section 66B of the Finance Act, 1994. Amongst the services exempt, it includes services of legal professionals consisting of Partnership Firm of Advocates or an individual Advocate other than a Senior Advocate. Clause 6(b) of the Exemption Notification No. 25/2012-ST dated 20.06.2012 provides as follows: "....
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....vices. If that were to be so, there is no obligation on the Senior Counsel to pay service tax. 10. In light of the above, individual lawyers and Partnership of firm of Advocates, Senior Advocates are exempted from payment of service tax under certain circumstances. 11. In W.P. No. 10776/2022, the petitioner advocate has income from sale of books, apart from income from profession. It must be noted that the liability under Section 73 of the Finance Act, 1994 provides for liability on "the person chargeable with service tax", Section 66B of the Finance act 1994 provides for levy of tax on "value of all services'. In terms of the negative list of services under Section 66D of the Finance Act, 1994, the negative list excludes under item (e) "trading of goods". Accordingly, income from sale of goods (books) will be excluded from the purview of service tax. 12. The contention of the Department is that there is a separate statutory remedy and that petitioners ought not to be permitted to short cut such statutory remedy by recourse to the present proceedings. It is also contended that there are disputed questions that ought not to be made subject matter of adjudication in the ....
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....position in view, the factual matrix of the petitions need to be taken note of and law applied to dispose off the petitions. I Re: W.P. No. 10776/2022 The petitioner is an Advocate and has income from consultation fee. In light of the discussion made above, income from such service by an Advocate is exempt and even if it falls outside the exemption, it is the recipient who has to pay on the basis of reverse charge mechanism and accordingly, the initiation of proceedings are one without jurisdiction insofar as claim of service tax as regards consultaation fee. Memo is also filed on 02.02.20224 to the effect that except income from advocacy and sale of books, there is no other income. As referred supra, taxable event of sale of books would fall within the category of sale of goods and is outside the purview of service tax. II Re: W.P. No. 18943/2022 The document furnished by the petitioner would indicate that it is income from profession as well as income from services rendered as a Notary. This is evident from the profit and loss account entry. Memo is filed on 08.02.2024 stating that income is only from legal profession. In terms of the reasoning supra, such incom....
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....nd Service Tax Act, 2017, no argument has been advanced regarding the said prayer. Further, as relief is being granted, question of entering into constitutional validity does not arise. The court ought not to enter into issues of constitutional validity when otherwise matter could be disposed off on its merits. VI Re: W.P. No. 8414/2022 The petitioner is a practicing advocate and it is contended that the proceedings are one without jurisdiction. Memo is filed on 08.02.2024 declaring income is from profession of practicing as an advocate and there is no other income from any other profession. In light of the reasoning made above, the proceedings initiated by the revenue are one without jurisdiction. 17. Accordingly this court pass the following: ORDER (i) The order dated 30.03.2022 bearing DIN No. 2022035700000000E4FB vide Order-In-Original No. 45-46/2022-SD2 passed by respondent No. 3 at Annexure-J, W.P. No. 10776/2022 is set aside. (ii) The order dated 14.10.2022 bearing DIN No. 202210570000003164E7 vide Order Sl. No. 263/2022 SD-4/2733/22 at Annexure-A in W.P. No 26096/2022 is hereby quashed. (iii) The show cause notice dated 23.04.2021 bearing Reference N....