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Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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Publish Date: 02 Mar, 2013
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SERVICE TAX ON RESTAURANT: A SMALL AMENDMENT MAKES A BROADER SCOPE OF SERVICE TAX


An article by:-
 
CA. Pradeep Jain
CA. Preeti Parihar
CA. Shubham Sancheti
 
Introduction:-
 
Under negative list regime, the service tax was introduced on restaurants, eating joints and mess which have licence to serve the liquor and facility of central heating or Air conditioning at any time during the previous year. However, this budget has removed the condition regarding the licence to serve the liquor. Thus, now the service tax is leviable on all the types of AC restaurants, eating joints or mess. However, some lacuna was there in the language of this levy since its inception which was supposed to be cleared in this budget; but this lacuna still exists even after widening of the scope of this levy. Herein we have looked into this entry as contained in the mega exemption notification prior to and after the amendment.    
 
 
Previous Provision:-
                                           
Vide notification no. 25/2012 ST dated 25.06.2012,Central Government exempted the service provided in relation to serving of food or beverages by a restaurant, eating joint or a mess, other than those having (i) the facility of air conditioning or central air heating in any part of the establishment, at any time during the year, and (ii) A license to serve alcoholic beverages.
 
In this notification the central government exempted only those restaurants, mess who do not have any air conditioner with a license to serve the alcoholic beverages. It means that the restaurants or a mess who have air conditioner with a license to serve alcoholic beverages are liable to pay service tax.
 
Amendment:-
 
The Hon’ble Finance Minister has announced the Union Budget 2013-14 on 28/02/2013. In this budget, notification no. 03/2013 ST Dt. 01.03.2012 has been issued to amend the above serial no. of the mega exemption notification and now the exemption is applicable in relation to the service provided in relation to serving of food or beverages by a restaurant, eating joint or a mess, other than those having the facility of air conditioning or central air-heating in any part of the establishment, at any time during the year. This notification has abolished the condition of license to serve the alcoholic beverages along with air conditioner.
 
It means that restaurants or a mess, not having the license to serve the alcoholic beverages, but having air conditioner in any part of establishment, at any time during the yearare liable to pay service tax. Simply speaking, all the AC restaurants or restaurants with central air heating facilities are liable to service tax w.e.f. 1.4.2013.
 
Lacuna as exists before as well as after the amendment:-
 
The language of the mega exemption notification uses the words “the service provided in relation to serving of food or beverages by a restaurant, eating joint or a mess, other than those having the facility of air conditioning or central air-heating in any part of the establishment, at any time during the year. The above language has been disputable since its inception as the department is interpreting the term “establishment” as entire building, not the restaurant itself. The authors of this article have come across a recent case of their client where demand was raised even on the non AC restaurant of the hotel by alleging that since AC is being installed in another restaurant (which is also the part of the establishment, i.e. hotel). It was alleged that due to this, the above condition that “the AC can be installed in any part of the establishment” is fulfilled. This is how the simple language can be mis-interpreted. On the other hand, phrase “by whatever name called, having facility of air conditioning in any part of the establishment” is preceded by the word “restaurant”. As such, the word establishment is also used in context of the restaurant, irrespective of the fact that the restaurant is situated in a large building with a no. of other restaurants therein. The intention of the government is to tax the AC restaurants only and due to this, the above language has been used. However, the word “establishment” has been mis-interpreted by the revenue officers. This lacuna is there right from the beginning; however, even after broadening the scope to this levy, this lacuna has not been removed.
 
While Concluding:-
 
Government is very quick in broadening the scope of any levy as well as the service tax law as whole. However, the quickness is not reflected in bridging the lacunas that still remain ever after some amendment in the same provision. The instant case is the perfect example of this truth. We have to see how long this lacuna continues.
 

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PRADEEP JAIN, F.C.A.

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