TMI Blog2023 (7) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... urt take note of the merits of the issues as well. Suppression of Receipts - HELD THAT:- In the case of the first petitioner the issue that arose on merits related to the quantification of the receipts offered towards construction. The first petitioner, had entered into construction agreements, which were not required to be registered at that point in time and were, hence, unregistered-Registered sale deeds were executed - While the construction agreement reflected the value of the land as 'X', the registered sale deed reflects an amount less than 'X'. According to the Department, the difference between X and Y, in fact, represents receipts from construction services hitherto suppressed and hence, such alleged suppressed receipts were brought to tax. In arriving at this conclusion, the assessing authority has compared the value of land as adopted under the construction agreement and that, as adopted in the registered sale deeds. In the reply filed, the submission of the petitioners is legalistic, to state that land value could not be presumed to be suppressed receipts from construction services. While theoretically, the petitioner may be right, it is the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners in their returns as well as for levy of interest and penalty, not be confirmed. 4. The show cause notices are dated 05.05.2015 and 29.06.2013. Both petitioners filed their responses on 01.07.2015 and 21.11.2013 respectively. Personal hearing was conducted on 10.12.2015 in the case of first petitioner. In the case of the second petitioner, a first hearing was conducted on 13.05.2016, the second on 29.12.2016 and the third on 11.04.2017. Thereafter, there was no further progress in the matter of assessment. 5. It is to be noted that the personal hearing in the case of both petitioners transpired prior to the onset of the Goods and Service Tax (GST) regime. The Central, State and Integrated Goods Service Tax Act came into effect on and from 01.07.2017. The show cause notices issued in the earlier regime were thus re-assigned to an officer, incidentally, the same officer who had adjudicated the proceedings even in the era of service tax prior to the onset of GST. The reassignment was made under order dated 29.09.2017. 6. The impugned orders have come to be passed on 30.12.2019 and 06.11.2020 without any personal hearing having been afforded to the petitioners, prox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of sub-Section (4B) to Section 73 and thus, there was no limitation at all that was provided for adjudication under service tax law. 13. That argument was repelled by the Bench stating that even if there was no time period prescribed under Statute, the statutory authority must exercise discretion in matters of adjudication within a reasonable period, in the absence of which the proceedings will be vitiated. In that context, they have referred to several judgments of the Hon'ble Supreme Court and the decisions of the High Courts including two decisions of this Court and the decisions are (i) State of Punjab v. Bhatinda District Coop. Milk P Union Ltd. , [(2007) 11 SC 363, (ii) S.B.Gurbaksh Singh v. Union of India Ors. (1976 (37) STC 425), (iii) Government of India v. The Citedal Fine Pharmaceuticals, Madras (AIR 1989 SC 1771 and (iv) J.M.Baxi Co. v. GOI, [2016 (336) E.L.T. 285 (Mad.)]. 14. That apart, in Circular No.32/80-CX.6 dated 26.07.1980, the Board has indicated that an order of adjudication must be passed and such decision communicated within five days from hearing. Where it was not practically possible to adhere to the aforesaid time limit, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. It is requested that above instructions to be issued to all concerned under your charge for information and guidance. This issues with approval of the Member [L J]. 16. Per contra, Mr.A.P.Srinivas, learned Senior Standing Counsel and Mr.M.Santhanaraman, learned Senior Panel Counsel appearing for GST and Central Excise Department would defend the impugned orders stating that they are not in breach of the statutory provisions. Section 73(4B) directs orders of adjudication to be passed within one year from date of notice only in situations 'where it is possible to do so' . Thus, in cases where there was a practical impossibility of passing of orders within the time stipulated, the Department is well within its right to pass orders as expeditiously as possible, and that is what has been done in the present case. 17. They would submit that with the coming into force of GST on 01.07.2017, the show cause notices were re-assigned by order dated 29.09.2017. They circulate the order of re-assignment under which 102 show cause notices have been re-assigned to the Commissioner who has passed the impugned orders. Thus, in addition to his regular charge as Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be suppressed receipts from construction services. While theoretically, the petitioner may be right, it is the case of the assessing officer that the veil is to be lifted and the true receipts from the constructions are to be determined. The response of the assessee does not reveal any satisfactory explanation in regard to the difference in land cost vis-a-vis the construction agreement and sale deeds. 24. As far as the case of the second petitioner is concerned, its case is that the classification of the service is itself incorrect and that the petitioner had constructed only individual villas, the receipts from which would not be amenable to tax at all. It has relied upon the judgment of the Hon'ble Supreme court in the case of Macro Marvel Projects Ltd v Commissioner of Service Tax (12 STR 603) as well as other judgments that according to it, have not been considered in proper perspective. For the above reasons, and on a consideration of the rival contentions noted as above, the impugned order is set aside and this matter is remitted to the file of the respondent for de novo consideration as well. 25. Since these are legacy matters pertaining to service tax, a date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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