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2025 (5) TMI 74 - HC - Service TaxDemand for service tax along with interest and penalty - income derived from legal services - non-payment of service tax for he contravened the provisions under Sections 67 68 69 and 70 of the Finance Act read with Finance Rules - HELD THAT - It is true that the Petitioner in the instant case is undisputedly a legal practitioner. He is an individual lawyer practicing at Bhubaneswar and such averments of the Petitioner are not disputed by the Opposite Parties. It appears from the demand-cum-show cause notice under Annexure-3 that pursuant to third party disclosure i.e. Income Tax Department regarding income of the Petitioner such demand for service tax has been made by the Department. Thus in view of the admitted fact that the Petitioner is a practicing lawyer and the earlier directions issued by this court as stated above as well as the instructions issued by the Department the Petitioner is exempted from levy of service tax for such income he derived from his legal service as a Lawyer. Thus the demand-cum-show cause notice dated 15th April 2021 (Annexure-3) and the order of recovery dated 28th January 2025 (Annexure-5) are quashed to the extent it relates to demand of service tax from the income of the Petitioner from his profession as an individual lawyer. At the same time we notice that the Petitioner has disclosed his income from house property in the income tax return for the Assessment Years 2018-19 and 2020-21. So it is open for the Department (Opposite Parties) to proceed in respect of the income from house property if any applicable to levy service tax in accordance with law. With aforesaid observation and direction the writ petition is disposed of.
1. ISSUES PRESENTED and CONSIDERED
- Whether the Petitioner, a practicing advocate, is liable to pay service tax on income derived from legal services for the Financial Year 2015-16 under the provisions of the Finance Act, 1994. - Whether the impugned demand-cum-show cause notice and recovery order issued by the Department for non-payment of service tax and penalty are legally sustainable. - Whether the Department's action in issuing notices and recovery orders against practicing advocates for service tax contravenes the exemption granted under the relevant legal framework and prior judicial directions. - The applicability of the Court's earlier order dated 31st March, 2021, and subsequent departmental instructions regarding exemption of practicing advocates from service tax/GST liability. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Liability of Practicing Advocates to Pay Service Tax on Legal Services Relevant Legal Framework and Precedents: The demand for service tax is governed by the Finance Act, 1994, specifically Section 73 which deals with recovery of service tax not paid or short paid. The relevant provisions also include Sections 67 to 70 of the Finance Act, which relate to determination and adjudication of service tax liabilities. The Court referred to its earlier decision dated 31st March, 2021, wherein it was held that practicing advocates are exempt from payment of service tax/GST on legal services rendered, as these services fall under the negative list of services exempted from such levy. Court's Interpretation and Reasoning: The Court emphasized that the Petitioner is an individual legal practitioner whose income from legal services is exempt from service tax as per the negative list exemption and prior judicial pronouncements. The Court noted that the Department's demand arose from third-party information (Income Tax Department) but reiterated that exemption applies regardless of such disclosures. Key Evidence and Findings: The Petitioner's status as a practicing advocate was undisputed. The Department's notices dated 15th April, 2021 (demand-cum-show cause) and 28th January, 2025 (recovery order) were issued for non-payment of service tax on income from legal services. The Department's counter admitted that the Petitioner is a legal practitioner but proceeded ex-parte due to non-cooperation. Application of Law to Facts: Applying the exemption established in the prior order and departmental instructions, the Court concluded that the Petitioner's income from legal services is not liable to service tax. The demand and recovery notices were therefore unsustainable to the extent they sought service tax from the Petitioner's legal practice income. Treatment of Competing Arguments: The Department argued for the validity of the demand based on non-payment and non-cooperation. However, the Court gave precedence to the exemption and prior directions protecting practicing advocates from harassment through such demands. The Court balanced the Department's procedural approach against the substantive exemption. Conclusion: The Court quashed the demand-cum-show cause notice and recovery order insofar as they pertain to service tax on the Petitioner's income as a practicing advocate. Issue 2: Validity of Departmental Actions and Compliance with Court Directions Relevant Legal Framework and Precedents: The Court relied on its earlier order dated 31st March, 2021, which directed the Commissioner GST to issue clear instructions to prevent issuance of service tax/GST notices to lawyers rendering exempted legal services. The Department's subsequent instructions dated 9th and 15th April, 2021 were also considered, which reiterated the exemption and instructed field formations to avoid initiating verification or recovery against such exempted services. Court's Interpretation and Reasoning: The Court observed that despite these clear instructions, the Department issued the impugned notices based on third-party information, resulting in harassment of the Petitioner. The Court underscored the need for strict adherence to its directions and departmental instructions to avoid unnecessary hardship to legal practitioners. Key Evidence and Findings: The Department's affidavit enclosed copies of instructions to field officers emphasizing diligence and coordination to prevent multiple or unwarranted inquiries. The notices to the Petitioner were issued notwithstanding these instructions. Application of Law to Facts: The Court applied the principle of administrative compliance with judicial directions and departmental guidelines, holding that the Department's failure to adhere to these resulted in invalid demands. Treatment of Competing Arguments: The Department justified the notices as a consequence of third-party disclosures and non-cooperation by the Petitioner. The Court rejected this as insufficient to override the exemption and the need to follow prior instructions. Conclusion: The Court directed that the Department's notices and recovery orders be quashed in respect of service tax on legal services and emphasized the necessity for strict compliance with its earlier directions. Issue 3: Scope of Departmental Action Regarding Income from Other Sources Relevant Legal Framework and Precedents: The Court acknowledged that while legal services are exempt, income from other sources such as house property may not be exempt from service tax or other levies, subject to applicable law. Court's Interpretation and Reasoning: The Court noted that the Petitioner had disclosed income from house property in income tax returns for Assessment Years 2018-19 and 2020-21. The Court clarified that the Department remains free to proceed with levy of service tax, if applicable, on such income. Key Evidence and Findings: The Petitioner's income tax returns disclosed house property income, which was not contested. Application of Law to Facts: The Court distinguished the exempt legal services income from other taxable income streams, allowing the Department to act lawfully on the latter. Treatment of Competing Arguments: No specific competing arguments were raised on this point. Conclusion: The Court permitted the Department to proceed with service tax recovery, if any, on income from house property, while protecting the Petitioner's legal services income from such demand. 3. SIGNIFICANT HOLDINGS "The practicing advocates should not have to face harassment on account of the Department issuing notices calling upon them to pay service tax/GST when they are exempted from doing so, and in the process also having to prove they are practicing advocates. The Commissioner GST is directed to issue clear instructions to all the officers in the GST Commissionerates in Odisha that no notice demanding payment of service tax/GST will be issued to lawyers rendering legal services and falling in the negative list, as far as GST regime is concerned." "In view of the admitted fact that the Petitioner is a practicing lawyer and the earlier directions issued by this court, as stated above, as well as the instructions issued by the Department the Petitioner is exempted from levy of service tax for such income he derived from his legal service as a Lawyer." Core principles established include:
Final determinations:
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