A show cause notice issued under Section 73(1) of the Finance Act, 1994, beyond the prescribed thirty-month limitation period, is without jurisdiction, thus rendering the proceedings void and allowing for writ intervention despite the availability of an alternative appellate remedy.

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN WRIT OR SUCH OTHER ORDER IN THE NATURE OF CERTIORARI TO QUASH OR SET ASIDE THE ORDER PASSED BY THE RESPONDENT ON 31.08.2023 AND ISSUED ON 25.09.2023 BEARING NO. BEL-EXCUS-000-HBL-AC-MR-24-2023-24-ST AND PRODUCE AT ANNEXURE-E.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner/assessee is before the Court calling in question the order dated 31-08-2023 passed by the respondent and issued on 25-09-2023 determining service tax liability, penalty and late fee against the petitioner, combining three different assessment years.

2. Heard Sri D.R. Ravishankar, learned senior counsel appearing for the petitioner and Sri Shivaraj S.Balloli, learned appearing for the respondent.

3. Facts, in brief, germane are as follows: -

3.1. The petitioner/assessee is the proprietor of M/s Advaita Consultancy Services engaged in the business of sale of computers, printers and computer related accessories to various Government undertakings. The petitioner was assessed to value added tax (for short, ‘VAT’) up to the date on which it subsisted i.e., up to 30-06-2017 and is said to have been paying GST from its onset on 01-07-2017. The assessee was earlier in the business of maintenance and repairs of computers and had obtained a service tax registration for the said business of maintenance and repair of computers and copying machines. From the financial year 2013-14, the assessee surrendered his service tax registration for the business of maintenance and repairs and switched over to the business of sale and marketing of computers and copying machines. These are the averments in the petition.

3.2. After about 5 years, between the dates 23-10-2019 and 14-10-2020, several communications are issued by the Superintendent of Central Tax seeking various documents and details pertaining to Form ST-3 returns, P & L Account and Balance Sheet and Form 26AS for the assessment year 2015-16. The petitioner is said to have complied with those directions. Notwithstanding the same, on 18-12-2020 the respondent issues a show cause notice calling upon the petitioner/assessee to show cause as to why service tax should not be determined against him along with penalty for short payment of service tax. The respondent issues a notice for personal hearing to the petitioner. The petitioner attends personal hearing and submits his reply. After about 2 years, again another personal hearing notice is issued to the petitioner and later an order in original is passed determining service tax liability and late fee to the tune of ₹8,73,031/-. It is this order in original that is challenged in the subject petition.

4. The learned senior counsel appearing for the petitioner would contend that the impugned order is without jurisdiction. Section 73(1) of the Finance Act, 1994 (for short, ‘the Act’) provides that where service tax has been short paid, notice had to be served on the person chargeable to service tax within thirty months from the relevant date. The proviso to Section 73(1) stipulates that where short payment is due to fraud, collusion, willful misstatement and suppression of facts, the time limit period of thirty months would be required to be read as five years. Since the show cause notice is issued beyond thirty months from the relevant date, it is without jurisdiction. The second limb of submission is that a single show cause not