DEEPAK BUILDERS Vs. UNION OF INDIA

JUDGEMENT

(1.) CHALLENGE in this petition filed under Articles 226/227 of the Constitution of India is for quashing Show Cause Notice dated 23.10.2012, Annexure P.6 whereby respondent No.2 has called upon the petitioner to show cause as to why service tax amounting to Rs. 21,31,44,202/ - be not demanded and recovered from it under Proviso to Section 73(1) of the Finance Act, 1994 (in short, 'the Act') by invoking the extended period of limitation, in addition to interest and penal action under Sections 75, 76, 77 and 78 read with Rule 7C of the Service Tax Rules, 1994 (in short, "the Rules").

(2.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is engaged in different kinds of construction activities in the State of Punjab. It is working for various government/semi government organizations. In the year 2007, respondent No.2 initiated an investigation against the petitioner. The respondent called upon the petitioner to supply information with respect to construction done on behalf of government departments. The information was supplied by the petitioner. After scrutiny, the respondent concluded that out of 22 projects carried out by the petitioner from September 2004 to January 2010, eight projects were taxable and the remaining 14 projects were not taxable in view of the provisions of the Act. According to the petitioner, construction of complex involves material as well as service. Material part is subject to VAT and service part is subject to service tax. The petitioner constructed various projects in which it supplied material. The respondent in the course of investigation formed an opinion that the petitioner was liable to pay tax on 33% of gross receipt. The petitioner agreed to pay a sum of Rs. 1.82 crores before the issue of show cause notice. The respondent concluded that the petitioner was liable to pay a sum of Rs. 2.71 crores whereas it had paid a sum of Rs. 1.82 crores so it was liable to pay further sum of Rs. 88.25 lacs. Accordingly the respondent issued a show cause notice dated 21.4.2011, Annexure P.4 raising demand of Rs. 88,25,187/ - in respect of work done by it during the years 2004 to 2010. Respondent No.2 during the pendency of adjudication of the said matter issued another show cause notice dated 23.10.2012, Annexure P.6 to the petitioner to show cause as to why service tax amounting to Rs. 21,31,44,202/ - be not demanded and recovered under Section 73(1) of the Act in addition to interest and penal action under the provisions of the Act and the rules. The demand has been raised invoking the extended period of limitation. According to the petitioner, demand for the same period cannot be raised twice. Hence the present petition by the petitioner.

(3.) LEARNED counsel for the petitioner contended that the issuance of show cause notice can be challenged in writ proceedings and there is no absolute bar.