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TMI Blog2024 (11) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994 which provides for Service Act as the services provided by the petitioner were not within the realm and sweep of the Service Tax. 2.3 It is the case of the petitioner that the petitioner was filing regular return of income under the provisions of the Income Tax Act, 1961 and was regularly assessed including for Financial Year 2016-2017. 2.4 It is the case of the petitioner that on coming into force of the Goods and Service Tax Act with effect from 01.07.2017 the petitioner had to obtain registration under the said Act. The petitioner accordingly applied for the GSTIN registration which was a PAN based registration. Petitioner was allotted the registration on 31.10.2017 under the GST Act. 2.5 It is the case of the petitioner that Permanent Account Number (PAN) was map for granting GST and registration and accordingly the data of the petitioner was shared with the Income Tax Department. 2.6 It is the case of the petitioner that considering the data received from the Income Tax Department, the respondent No. 2 issued show cause notice dated 22.04.2021 for the period 2015-16 and 2016-17 for determining the "Income Earned" as "Value of Services" and consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned show cause notice based upon the particulars in Form-26AS is without jurisdiction more particularly when the respondent authorities have failed to take into consideration the reply filed by the petitioner that the petitioner is not subject to Service Tax under the provisions of the Finance Act, 1994. 4. It was submitted that the impugned show cause notice and the adjudication order based on the particulars mentioned in the Form-26AS is impermissible in view of the decision of this Court in case of Pradip Kumar Contractor Vs. Additional Commissioner in Special Civil Application No. 7666 of 2023 rendered on 29.11.2023. 5. It was further submitted that the reasoning that the show cause notice dated 22.04.2021 after recording the various provisions of the Finance Act, 1994 has only referred to the total of sales and Gross Receipts as per the Income Tax Data and alleged that there was a concealment of the value of the service rendered by the petitioner. It was submitted that there is no concealment as alleged, and therefore, if the impugned notice is also time barred as the same is issued beyond the prescribed period by invoking extended period of 5 years under first proviso t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity provided the following information about the petitioner:- Sr. no. Period (F.Y.) Income received (In Rs.) Business Description (Service Sector) 1 2015-16 26230725 Others 2 2016-17 38404296 Others 64635031 Others The petitioner had been engaged in the business of Works Contract Services but did not obtain Service Tax Registration from the Central Excise & Service Tax department as per the provisions of Section 69 of the Finance Act, 1994. The petitioner failed to self-assess the revenue collected as shown by him in the income tax returns and did not inform to the indirect tax authority about the alleged collected income/revenue. On receiving the data from the Income Tax Department, the Jurisdictional Range Officer initiated inquiry against the petitioner and asked the petitioner to submit particulars of the income received vide letters dated 08.04.2021 & 12.04.2021 marked as ANNEXURE-R-1 (Colly), but he ignored to comply with letters issued to him. Therefore, a Show Cause Notice dated 22.04.2021 was issued to the petitioner after considering the facts available with the office. 9. During course of adjudication, personal hearing was granted to pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided by the Income Tax Department in ITR as well as the Form-26AS which is considered for the purpose of determining the Taxable Services of the petitioner. 11. Considering the submissions made by the learned advocates for both sides and it is not in dispute that the petitioner did not prefer an appeal though provided under the provisions of the Finance Act, 1994. On perusal of the impugned show cause notice as well as order-in-original it appears that the respondents have called for the information from the Income Tax Department regarding tax deducted at source with respect to the payments made to the petitioner by the principals or the contractors which are in any case for exempted from service as per the Exemption Notification No. 25/2012 dated 20.06.2012 read with Amendment Notification No. 6/2015 dated 01.03.2015 and Amendment Notification No.9/2016 dated 01.03.2016. 12. As per Clause-12 (A) of the Notification No. 25/2012, the services rendered provided to Government Local Authority etc. under a contract which have been entered into prior to 01.03.2015 was exempted. 13. The Clause-12 (A) of the Notification reads as under:- "12A. Services provided to the Government, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated in the State of Gujarat and accordingly, the respondent Authority has no jurisdiction to issue any show-cause notice for the services rendered by the petitioner at Rajasthan as none of the parties to whom the services were rendered was situated in the State of Gujarat. Therefore, even considering the Form No. 26AS on the face value, respondent-authority have no jurisdiction to issue the show-cause notice and therefore, the show-cause notice is liable to be quashed and set aside and is accordingly, quashed and set aside. As a consequence thereof, the Assessment Order as well as the recovery proceedings are also quashed and set aside. Rule is made absolute. No orders as to cost." 16. The respondent No. 2, Additional Commissioner, who has passed the impugned order-in-original penalized the details submitted by the petitioner in the reply to come to the conclusion that the services provided by the contracts mentioned at Serial No. 127 of the table-D was held to be leviable on the ground that such contracts related to construct of roads entrusted to the main contractor namely Jivanbhai A. Patel and Kanubhai Amrutbhai Patel which is not the petitioner noticee and petitioner did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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