TMI Blog2023 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter or the rules made thereunder with intent to evade payment of service tax, then the period of limitation is five years which period stands substituted for eighteen months as seen from the proviso to sub-section (1) of Section 73. When there is a delayed filing of the return under Rule 7C of the Service Tax Rules, 1994, it has to be presumed that the amount specified in Rule 7C has been paid and so has the tax liability been satisfied. In that circumstance, the relevant date is the date on which the tax has been paid. As is evident from Annexure-17, for the period between April, 2015 and September, 2015 the assessee has filed an ST-3 Return on 25.07.2016 while returns for the remaining relevant period were filed thereafter. The limitation, hence, commences on 25.07.20216 and as on 25.07.2021, the date of demand-cumshow cause notice; the five year period, has not expired. The ground of limitation raised fails and is rejected. Jurisdiction to issue SCN - HELD THAT:- The Central Services and Goods Act, 2017 came within one year, i.e. on 12.04.2017. The C.G.S.T. Act contained Section 173 by which Chapter V of the Finance Act stood omitted. However, Section 174 of the CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Intercontinental Consultants and Technocrats Pvt. Ltd.; (2018) 4 SCC 669. 3. The petitioner has also challenged the issuance of Notification No. 12/2017, Central Excise (NT) dated 09.06.2017 after the Central Goods and Services Tax Act, 2017 was passed by the Parliament after which there is no jurisdiction vested on the 2nd respondent to issue the impugned demand-cum-show cause notice. 4. We heard learned counsel for the petitioner and the learned Additional Solicitor General and perused the records. 5. We observe at the outset that the writ petition against the demand-cum-show cause notice would not be maintainable. However, we considered the same only on the plea raised by the learned counsel for the petitioner that the notice was barred by limitation and also was without jurisdiction for the reason of the same having been issued on the basis of the provisions declared ultra vires. 6. We would first consider the contention raised of the notice being barred by limitation. The argument with respect to limitation is based on Section 73(1) of the Finance Act, 1994. Section 73(1), which came into effect from 28.05.2012, enables a notice to be served on the person cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. 9. The relevant date as provided in clause (a) and (b) of the above extract indicates it to be the date on which the return is filed, if a periodical return is mandated in the rules made under this Chapter and where no periodical return is filed, the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued having been set aside by the High Court of Delhi which decision has been confirmed by the Hon ble Supreme Court. The provision which has been held ultra vires is Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006. Rule 5(1) is extracted hereinunder:- 5. Inclusion in or exclusion from value of certain expenditure or costs.- (1) Where any expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs shall be treated as consideration for the taxable service provided or to be provided and shall be included in the value for the purpose of charging service tax on the said service. Explanation .- For the removal of doubts, it is hereby clarified that for the value of the telecommunication service shall be the gross amount paid by the person to whom telecommunication service is actually provided. 14. The specific rule provided for the expenditures/costs such as travel, hotel stay and transportation etc. incurred by the service provider in the course of providing taxable service also to be treated as consideration for taxable service and included in the taxable value for charging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure agent was sought for in the return itself without submission of any requisite documents relating to pure agency. Hence, a mere claim of reimbursable expenses having been deducted would not suffice and though Rule 5(1) has been declared to be ultra vires; it has to be proved that the deductions made are, in fact, reimbursable expenses. In this context, we also nurture an apprehension as to how if they were reimbursable expenses; TDS was deducted from the said amount by the service provider. 18. It has also to be noticed that one other head on which willful misrepresentation and suppression is alleged, is the legal charges incurred by the noticee for the financial year 2015-16 to 2017-18; which came to Rs. 1,19,48,243/- on which they were liable to pay service tax under Reverse Charge Mechanism in terms of Notification No. 30/2012- Service Tax dated 20.06.2012. 19. We do not think that the notice is vitiated either on limitation or on the ground of Rule 5(1) having been declared ultra vires by the Hon ble Supreme Court. The notice is within the period of limitation and the deduction claimed has to be proved as reimbursable expenses, incurred as a pure-agent. 20. Now, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
