Tax impose upon service
Case Title | N.E. Logistics& Anr vs Union of India & Ors. |
Court | Gauhati High Court |
Honorable Judges | Justice Achintya Malla Bujor Barua |
Citation | 2022 (3) GSTPanacea 321 HC Guahati WP(C)/1870/2022 |
Judgement Date | 23-March-2022 |
Council for Petitioner | J P More |
Council for Respondent | SC Keyal |
Section | Section 78 of the Finance Act 1994 |
In Favour of | Matter Remanded |
The Gauhati High Court bench of Justice Achintya Mallabujor Barua has held that the liability to pay a service tax is not upon a presumption nor can it be based upon a state of indeterminateness on the part of the authorities. As the conclusively determination had not been made, we remand the matter back to the Principal Commissioner, CGST, Guwahati for a fresh determination
FACTS OF THE CASE
The petitioner No. 1 is a proprietorship firm and the petitioner No. 2 is its proprietor and was engaged in the business of civil construction activities (Turnkey projects) in infrastructure sector.
By the impugned demand notice dated 12.11.2021 of the Principal Commissioner, GST being the order in original No. 6/Pr.Commr.ST/GHY/2021-22, the petitioner had been imposed a service tax amounting to Rs. 4, 41, 64, 329/- along with a penalty of Rs. 10,000/- and a further penalty of Rs. 4, 41, 64, 329/- along with interest in terms of Section 78 of the Finance Act 1994.
The petitioner takes a stand that in respect of the contract works they had undertaken for which the service tax had been imposed, they are exempted under the law from payment of service tax in respect of some of such contractual works.The impugned demand notice, it is provided that upon perusal of the work order contracts vis-à-vis Form 26AS, it is not possible to establish against which contract the petitioner had received the amount reflected in the Form 26AS and moreover the work orders are of the years 2006, 2010, 2011 and 2012.
As the petitioner notice had not submitted anything further showing any co-relation between the contracts and the entries in the Form 26AS and therefore, the department was of the view that the petitioner would be liable to pay the service tax imposed in the impugned demand notice.
Tax impose upon service
COURT HELD
Considering the facts as recorded, held that the liability to pay a service tax is not upon a presumption nor can it be based upon a state of indeterminateness on the part of the authorities. The liability to pay a tax has to be conclusively determined that for the given transaction for which the tax is imposed the noticee is liable to pay such tax and such taxes are not being paid.
As the said determination had not been made, we remand the matter back to the Principal Commissioner, CGST, Guwahati for a fresh determination.
Tax impose upon service
ANALYSIS OF THE JUDGEMENT
As the said determination had not been made, we remand the matter back to the Principal Commissioner, CGST, Guwahati for a fresh determination.
In doing so, the petitioners be given an appropriate opportunity to produce any relevant material to show that the contract works for which the service tax has been imposed, the noticee is not liable to pay tax for such transaction and in doing so, the petitioners to also co-operate with the authorities so that they also can come to a conclusion on the aspect and produce any relevant material as may be desired.
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