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TMI Blog2022 (12) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of Certiorari or any other appropriate writ, direction or order to call for records of the Petitioners' case to go into the legality and propriety thereof and to quash and set aside the impugned Order dated 27.04.2021 bearing No.GOA-EXCUS-000-COMMR-002-2021-22; b) In the premises this Hon'ble Court may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, direction or order to call for records of the Petitioners' case to go into the legality and propriety thereof and to quash the show cause notice dated 03.02.2016 bearing No. CXST/SCN/Adj./25/15-16/Commr; c) this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction ordering and directing the Respondent No.2 by himself, his subordinates, servants and agents to not take any coercive action / to not implement the impugned order and stay the operation of the impugned order till disposal of the present petition; d) for interim and ad-interim relief in terms of prayer (a) and (b) above; e) such other and further order or orders as may be deemed just and proper in the facts and circumstances of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship of service provider or service receiver between the parties to the joint venture agreement and this fact has been admitted by the department. Thus, the demand of service tax for the period from April 2013 to March 2015 is completely illegal and unwarranted. 7. The learned Counsel Ms P. Kamat appearing for the Revenue would submit that there was an amendment to Section 65-B of the Finance Act, 2012, Respondent No.2 has rightly considered existence of joint venture since at that time the joint venture between the Petitioner and the other member was very much in existence. However, learned Counsel for the Respondent was unable to point out any reasons or discussion in the impugned order with regard to the reply filed by the Petitioner to the show-cause notice and specifically pointing out that joint venture was cancelled vide deed of cancellation dated 1 April 2013. 8. The rival contentions fall for our consideration. 9. The Petitioner who is engaged in the business of restaurant/ accommodation, etc. was registered with the Service Tax Department vide registration No.AABCB1813AST001. The Petitioner was paying service tax wherever applicable and also filing periodical ST-3 ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, then, they were liable to pay service tax. There is no such arrangement in the Agreement nor do the books of accounts show such payments. Investment in the form of infrastructure in the Joint Venture is not a service to the other member of the Joint Venture; (ii) The Board's Circular No. 109/03/2009 dated 23.02.2009 has clarified the issue. The ratio of the above circular is squarely applicable in this case; (iii) The profit is shared between BAPL and GGCPL as per the Joint Venture Agreement and there is no service provider and service receiver relationship. The amount shared as per the Joint Venture Agreement cannot be considered as consideration for providing any taxable service; (iv) Hence, the demand for the period from 01.10.07 to 30.06.12 i.e. prior to July, 2012 does not sustain; & (v) As regards the demand for the period from July, 2012 it is observed that the CBEC Circular No. 179/5/2014-ST dated 24.09.2014 has clarified that with effect from 01.07.2012, the JV and the members of the JV are treated as distinct persons and therefore, taxable services provided for consideration, by the JV to its members or vice versa and between the members of the JV are taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Finance Act, 1994 (Exh.K). Perusal of this show-cause notice clearly goes to show that the grounds of SCN - non-payment of service tax on the amount received from joint venture of BAPL and GGCPL for providing of the infrastructural facilities for the purpose of running a casino was calculated and the Petitioner was called upon to pay an amount of Rs. 4,50,15,294/- for the financial year 2013-14 and 2014-15. The Petitioner was also called upon to answer the said demand by attending the office of Commissioner of Central Excise and Service Tax, Goa. 14. On receipt of such demand notice, Petitioner filed there reply dated 20 June 2016 explained in paras 7 to 9 as under:- "7. The earlier two SCNs dated 23.4.2013 and 21.3.2014 were dropped by your good-self vide OIO No. GOA-EXCUS-000-COM-014-2014-15 dated 30/12/2014. We are surprised to receive the current SCN when earlier two SCNs were dropped and when there is no issue at all in the current matter. 8. The subject SCN as detailed above is pending before your goodself for adjudication. However, we would like to point out that the issue does not exist anymore since w.e.f. 1/4/2015, the joint venture agreement dated 5/4/2002 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department is justified. 19. We are unable to accept the reasons disclosed by Respondent No.2 in the impugned order for the simple reason that there is no reference to the contents of the reply filed by the Petitioner to the show-cause notice and the document attached to it thereby specifically disclosing that the joint venture between BAPL and GGCPL was cancelled with effect from 1 April 2013. Thus, there was no service provider or service receiver contract between the parties justifying the levy of service tax. The impugned order further failed to take into account the order passed by the Appellate Tribunal dated 5 March 2019 (Exh.I) wherein a demand of the department for the earlier period from October 2007 to March 2013 was negated. It therefore clearly revealed that there is non-application of mind while passing the impugned order. Similarly, it is clear from the reasonings in the impugned order that Respondent No.2 failed to take into account reply and the document produced by the Petitioner to the show-cause notice, which now compelled us to quash and set aside the impugned order and to remand the matter for fresh consideration by taking into account the reply and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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