TaxTMI 
TaxTMI 
2025 (5) TMI 222
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.... 174 of the Central Goods and Services Act, 2017, bearing DIN No.20220357YV000000000FD9 and Order-in-Original No. BLR -NORTH-COMM-54/2021-22 and GEXCOM/ADJN/ST/ COM/56/ 2021-ADJN-CMMR -CGSTBENGALURU (N) 858/22 (ANNEXURE H); iii. Pass such order or further orders as this Hon'ble court may deem fit in the facts and circumstances of the case, and in the interest of justice and equity." 2. Briefly stated the facts giving rise to the present petition are as under:- The petitioner is a partnership firm engaged in the business of providing advertising services and was registered with service tax under the Service Tax Regime and subsequently, also registered under the GST regime. It is contended that the activities of the petitioner constitute obtaining space at prominent locations on rent from landlords assisting in erecting and mounting structures to hold bill boards and providing space on the said structures on rent to companies. It is contended that pursuant to agreement dated 07.10.2011 entered into between petitioner and South Western Railways, the petitioner paid the licence fee and was carrying on business. 2.1 Pursuant to introduction of the GST regime on 0....
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....n to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submitted that apart from the fact that the impugned show cause notice is illegal, arbitrary and contrary to the provisions of Section 73 of the Finance Act, 1994 in addition to being without jurisdiction or authority of law, the claim of the respondents is barred by limitation and as such, the impugned show cause notice as well as the impugned order deserve to be quashed. It is submitted that though the petitioner had submitted a detailed reply dated 23.11.2018 to the impugned show cause notice as well as detailed written submissions on 25.01.2022, the 2nd respondent neither considered or appreciated the same nor provided any opportunity to the petitioner before passing the impugned order at Annexure-H dated 21.03.2022 after filing the present petition and the impugned order deserves to be quashed on this ground also. In support of his contentions, learned Senior counsel for the petitioner placed reliance upon the following judgments:- "I. Escprts Limited vs. Commissioner of Central Excise, Faridabad-(2015) 9 SCC 109; I....
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.... been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been substituted." The aforesaid Section prescribes that if there is an allegation of non-payment of tax then proceedings can be initiated from 30 months from the relevant date. The proviso to the section provides that in circumstances wherein it is alleged that there is fraud, suppression of fact, contravention of the provisions of the chapter with the intent to evade tax could be a ground to extend the period of limitation from 30 months to 5 years. d. Indisputably, the period of assessment is from October 2012 to June 2017. The Show cause Notice dated 07.09.2018, if calculated backwards from 07.09.2018, the reckoning date ....
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....ng mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which a limitation period of six months may apply. In our opinion, the main body of the section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso." "13. This Court in Pushpam Pharmaceuticals Co. v. CCE [1995 Supp (3) SCC 462: (1995) 78 ELT 401] while interpreting the proviso of an analogous provision in Section 11-A of the Central Excise Act, 1944, which is pari materia to the proviso to Section 28 discussed above, made the following observations: (SCC pp. 463-64, para 4) "4. Section 11-A empowers the Department to reopen proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the provi....
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..... 6. Per contra, learned counsel for the respondents would reiterate the various contentions urged in the statement of objections and vehemently opposed the petition and sought for its dismissal by placing reliance upon the judgment of the Apex Court in the case of Horticulture Experiment Station, Gonikoppal, Coorg vs. The Regional Provident Fund Organisation - (2022) 4 SCC 516. 7. I have given my anxious consideration to the rival submissions of both the parties. 8. A perusal of the material on record will indicate that the petitioner had initially challenged the impugned SCN dated 07.09.2018 urging various grounds including inter alia contending that the impugned SCN was beyond the period of limitation of 5 years as contemplated under Section 73(1) of the Finance Act, 1994. Subsequently, the petitioner challenged the impugned order at Annexure-H dated 21.03.2022 which had been passed during the pendency of the present petition not only on the ground that the demands made therein were barred by limitation but also that various contentions urged by the petitioner had not been considered by the 2nd respondent and that no opportunity was provided to the petitioner before pas....