Adv. Pooja Patil vs. The Deputy Commissioner, CGST And Cx Division Vi, Raigad Commissionerate And Ors
Facts
The Petitioner, an advocate, assails an Order-in-Original dated 26th October, 2023, passed by the Deputy Commissioner, CGST and C. Excise, Raigad. The order confirmed a demand of Rs.35,82,298/- towards service tax, along with interest and penalties, under Section 73(1) of the Finance Act, 1994, read with Section 174 of the CGST Act, 2017. The Petitioner contends that the order was passed without jurisdiction and in breach of natural justice. She claims she never received the show-cause notice dated 24th December, 2020, and that advocates are exempt from service tax under relevant notifications. The impugned order was communicated to her on 9th January, 2024.
Held
The Court held that the Deputy Commissioner acted without jurisdiction in passing the impugned order. This was because Notification No.25/2012-Service Tax and Notification No.30/2012-Service Tax dated 20th June, 2012, clearly exempted services provided by individual advocates from the levy of service tax. The Court found that the Designated Officer had not considered the Petitioner's contention regarding the non-levy of service tax on individual advocates, despite being pointed out. The Court also noted a breach of natural justice as the Petitioner was not granted an appropriate hearing. Given the clarity of the notifications and the lack of jurisdiction, the Court deemed it fit to quash and set aside the impugned order, finding no useful purpose in remanding the matter. The ratio is that an authority acting contrary to binding government notifications, especially concerning exemptions, acts without jurisdiction, and such orders are liable to be set aside.
Key Issues
1. Whether the impugned Order-in-Original dated 26th October, 2023, passed by the Deputy Commissioner, CGST and C. Excise, Raigad, is liable to be quashed and set aside on the ground that the show-cause notice dated 24th December, 2020, was neither issued nor received by the Petitioner, thereby constituting a breach of principles of natural justice? (Petitioner's contention). 2. Whether the impugned order is liable to be quashed and set aside on the ground that the Deputy Commissioner acted without jurisdiction, given that Notification No.25/2012-Service Tax and Notification No.30/2012-Service Tax dated 20th June, 2012, exempt individual advocates from the levy of service tax? (Petitioner's contention). The Revenue did not dispute the purport of these notifications.
Sections Cited
Section 73(1), Section 174, Section 75, Section 78, Section 77(1)(c), Section 77(1)(a), Section 70(1), Section 69, Section 68(2)
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Cause title — parties, addresses and appearances
Oral Judgment : (Per G. S. Kulkarni, J.)
This Petition under Article 226 of the Constitution of India assails an Order-in-Original dated 26th October, 2023 passed by the Deputy Commissioner, CGST and C. Excise, Raigad, whereby an amount of Rs.35,82,298/- towards service tax under the provisions of Section 73(1) of Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017, has been ordered to be recovered from the Petitioner inter- alia with interest and penalty. The operative part of the impugned order reads thus :- “ORDER (i) I confirm the Service Tax demand of Rs.35,82,298/- (Rupees Thirty Five lakh Eighty Two Thousand Two Hundred
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