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M/s. Ganga Foundations Pvt Ltd Versus The Commissioner Large Taxpayer Unit (LTU)

2015 (9) TMI 639 - MADRAS HIGH COURT

Waiver of pre deposit - Mandatory pre deposit - Section 35F - Held that:- Applicability of Section 35 F of the Finance Act is pending consideration before the Hon'ble Division Bench of this Court, this Court permits the petitioner to file an appeal along with waiver application, within a period of two weeks from the date of receipt of a copy of this order. Since the matter is pending before the Division Bench of this Court, testifying the validity of Section 35-F of the Finance Act, relating to .....

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l, who took notice for the respondent and with their consent, the main writ petition itself is taken up for disposal. 2. This writ petition has been filed challenging the order dated 26.06.2015 passed by the respondent in C. No.IV/09/478/2012-13 No. 2/2015. 3. The petitioner, which is a Company incorporated under the provisions of the Companies Act, engaged in the construction service in respect of residential and commercial or industrial buildings and civil structures, in the capacity of Promot .....

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ned to undertake a project Anandam in Chitlapakkam, they applied for registration under Service Tax in 2011 and the same was granted on 08.02.2011, for construction of Industrial and Commercial Buildings, and on 21.10.2011, the registration was amended for Transport of Goods by road, construction of residential complex, renting of immovable property services and works contract services . Pursuant to the grant of registration, the officials attached to the Service Tax, issued a letter dated 09.02 .....

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itten submissions were also filed at the time of personal hearing given to the petitioner on 17.12.2014. When the adjudication of notice was transferred to the respondent, the petitioner filed written submissions before the respondent on 07.04.2015, denying the allegations contained in the show cause notice. However, rejecting the reply filed by the petitioner, the respondent, passed the impugned order, confirming the proposals made in the show cause notice dated 22.10.2012.Aggrieved against the .....

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t as the same cannot be termed as an amendment. According to the learned counsel for the petitioner, the conclusion so arrived at by the respondent is contrary to the settled position of law as per the decisions of the Hon'ble Apex Court and the Courts in general that any amendment by way of Explanation to a Section is only prospective and cannot be applied retrospectively. It is pointed out by the learned counsel for the petitioner that the explanation inserted was specifically made effecti .....

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n itself. 4.3 Further, according to the learned counsel for the petitioner, the reasoning of the respondent is contrary to the provisions and the decisions of the Hon'ble Apex Court that any amendment by way of insertion to a provision can be applied only prospectively and the Circulars issued by the Board clearly confirm that the Explanation is effective from 01.07.2010, which are binding on its officers. 4.4 The learned counsel for the petitioner would further submit that the period of dis .....

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e cases where the lis arises after 6.8.2014. 4.5 Besides, according to the learned counsel for the petitioner, the question of applicability of substituted Section 35-F of the Finance Act, to the orders passed after 06.08.2014 or to the appeals filed on or after 06.08.2014, is still pending consideration before the Division Bench of this Court, irrespective of the final orders by Kerala High Court reported in 2015 TIOL 895 Kerala and the interim orders of the Andhra Pradesh High Court reported i .....

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