Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2365

whether there can be demand of Service Tax in respect of the receipt towards the taxable services rendered earlier, in the business, taken over by the appellant under business transfer agreement.

Case:-M/s ESSAR PROJECTS LTD Vs COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAJKOT
 
Citation:-2014-TIOL-1732-CESTAT-AHM
 
Brief facts:-The relevant facts that arises for considerations are: M/s Essar Construction (I) Ltd, 12, Swastik Society, Essar House, Jamnagar (hereinafter refereed to as the Noticee) are holder of Service Tax Registration under Section 69 of the Finance Act , 1994 (32 of 1994) (hereinafter referred to as the said act) under the category of Goods Transport Agency, Construction Service, Erection, Commissioning, and Installation Services, Business Auxiliary Services and Consulting Servicessince 04.09.2006 bearing Number AAACE2358JST007. During course of Audit of records of M/s Essar Projects Ltd for the period from April 2007 to March 2008 it has observed that M/s Essar Projects Ltd had sold the entire business pertaining to their Construction Division to the Noticee another group company w.e.f. 30.06.2006 as per Business Transfer Agreement. Since 30.06.2006 no business activity of any kind including providing taxable services was undertaken by M/s Essar Projects Ltd. However, financial transactions such as payment to the creditors pertaining to input and input services have been recorded in the books of account of the Noticee. M/s Essar Project Ltd has informed that they had not prepared or maintained any Books of Account after 30.06.2006 and the amount received in consideration of taxable services provided till 30.6.2006 by them had been reflected in the Books of Account maintained in favour of the Noticee as per terms and conditions of Business Transfer Agreement dated 30.06.2006 for having transferred the business along with its entire liability and assets.
The Noticee has not discharged the Service Tax liabilities on services provided on or after 30.06.2006. As per the agreement made on 30.06.2006 the Noticee continued to carry out the activities of Construction and liability for payment of Service Tax on such activities is on the Noticee. The Service Tax on service provided by the Noticee the period 01.07.2006 to 31.03.2008 is required to be paid by the Noticee, but they failed to pay the amount of such Service Tax. The Noticee has not paid the service tax at the rate, in manner and period prescribed, which was resulted in the non-payment of service tax amounting to Rs 9,96,14,733/- and thereby contravened the provisions of Section 68 of the Act, read with Rule 6 of the Service Tax Rules, 1994. The Noticee has also rendered himself liable to pay interest as provided under Section 75 of the said act. The Noticee has not obtained the service tax registration at the material time and thereby appears to have violated the provisions of Section 69 of the Finance 1994 read with Rule 4 of the Service Tax Rules, 1994. The Noticee has not assessed the tax due, property, on the services provided by them, as discussed in foregoing paras, and have also not filed any returns during the period from 30.06.2006 to 2007-08 and thereby appears to have violated the provision of Section 70 of the Finance, 1994 read with Rule 7 of the Service Tax Rules, 1994.
The lower authorities issued a show cause notice dtd 14.9.2012 demanding differential duty, interest thereof and also sought to impose penalties by invoking extended period. The appellant contested the show cause notice on merits as well as on limitations and also availed the personal hearing granted by the Adjudicating Authority. The Adjudicating Authority did not agree with the contentions raised by the appellant and confirmed the demands raised, alongwith interest and also imposed penalties.
 
Appellant’s contention:-Ld Counsel appearing for the appellant draws our attention to the OIO and the findings recorded by the Adjudicating Authority. It is his submission that the appellant had taken-over the running business of Essar Projects Ltd and it was made effective from 30th June 2006. He would also submit that the appellant had taken-over all the assets but the liabilities for earlier period, contracted as to be discharged by Essar Projects Ltd. It is his submission that even if any tax liability arises, it is the responsibility of Essar Projects Ltd and not the appellant. Alternatively, he would submit that on merits also, the entire amount of Service Tax liability as confirmed is already paid by Essar Projects Ltd as is evident from the audit report No. VI(a)/ST/JNN/FAR-A-29/2009 dtd 20.11.2009 which was conducted in the premises of Essar Projects Ltd, Vadinar. He would submit that by confirming the demand, interest and imposing penalty, Adjudicating Authority has erred in demanding the tax, twice over.
 
Respondent’s contention:-Ld. Dept. Representative reiterated the findings of the Adjudicating Authority.

Reasoning of judgment:-On perusal of the records, it transpires that the issue in the current appeal is to decide whether there can be demand of Service Tax in respect of the receipt towards the taxable services rendered earlier, in the business, taken over by the appellant under business transfer agreement.
Undisputed facts are appellant have taken over the running business of Essar projects Ltd under business transfer agreement and are eligible to receive the various outstanding of Essar Projects Ltd. One of the outstanding is regarding the consideration to the said Essar Projects Ltd, i.e., the debtors, were the clients to whom the services were rendered by Essar Projects Ltd. Subsequently, after taking over the business from 30th June, 2006 the appellant herein received the outstanding debts of Essar Projects Ltd by virtue of Business Transfer Agreement, this amount is being held by the Adjudicating Authority as an amount received for provision of taxable services and tax liability arise.
Without going into detailed discussions as proposed by the Ld counsel and opposed by the Ld Dept. Representative, they find that Essar Projects Ltd had undisputedly discharged the Service Tax liability which is confirmed against the appellant. This is evident from the fact that the audit team vide its final audit report dtd 20th November 2009 in Paragraph 2 recorded is as under:
 
As observed and verified from records that the entire business was closed by way of selling it to another group unit i.e., M/s Essar Construction (I) Ltd (ECIL) on 30.6.06, but the assessee had carried forward the amount of Rs 43,96,046/- as cenvat credit lying in balance on 30.06.06 instead complying with the Transfer of credit provisions made in the Rule 10 of the Cenvat Credit Rules, 2004. Further, the assessee informed that they had not prepared or maintained any Books of Account in favour of M/s Essar Projects Ltd (EPL) after 30.06.2006 ands the amount received in consideration of taxable service provided till 30.6.06 by them had been reflected in the Books of account maintained in favour of ECIL (the buyer) in terms and conditions of Business Transfer Agreement dated 15.06.06 for having transferred the said business alongwith its entire liability and assets. In view of the above, it appears that the assessee was neither liable to pay service tax amounting to Rs 9,96,14,733/- which they had paid during July06 to March 08 as the amount so recovered had been shown in the Books 0f Account of M/s ECIL., nor entitled to avail fresh cenvat credit or keeping any such cenvat credit lying in balance as it would stand lapse on the day of closing or transferring or selling entire business.
Therefore, Rs 43,96,046/- shown as opening balance on 01.07.06 in their Cenvat Credit account (Annexure A) and utilized by them against deemed liability of service tax was not admissible to them. Apropos amount of Rs 43,96,046/- requires to be recovered from them alongwith interest. (Emphasis supplied)
It can be seen from the unnumbered paragraph number three of reproduced final audit report, the audit officers have held that an amount of Rs 9,96,14,733/-has been paid by Essar Projects Ltd which they need not have to pay. It can be seen from the impugned order that the Adjudicating Authority has confirmed the exact amount to the last rupee. They find that this position of discharge of Service Tax liability by Essar Projects Ltd remains undisputed by the audit report given by the Dept official, not controverted by revenue. In their considered view, Service Tax liability which has already been discharged, cannot be again recovered from the appellant, who has taken-over the business from a particular day. This would amount to double taxation on the same service which is not contemplated in law.
In view of the foregoing findings, they set aside the impugned order as unsustainable and allow the appeal filed by the assessee. Impugned order is set aside and the appeal is allowed.
 
Decision:-Appeal allowed.

Comment:-The analogy of the case is that the service tax liability which has already been discharged can’t be again recovered from the appellant, who has taken over the business from a particular day. Same amount can’t be taxed twice. This would amount to double
taxation on the same service which is not contemplated in law. Hence, service tax can’t be recovered from the appellant.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com