BANGALORE ELECTRICAL SUPPLY v. THE ASSISTANT COMMISSIONER OF CENTRAL TAX

counsel for the respondents and perused the material on record. - 3 - NC: 2024:KHC:35770 WP No. 17848 of 2024

3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner submits that pursuant to inspection being conducted on 09.03.2023 under Section 67(1) of the Central Goods and Services Tax Act, 2017, the petitioner received communication dated 03.07.2023 the Senior Intelligence Officer, DGGI, to which the petitioner submitted a reply, in pursuance of which, a communication under Section 73(5)/74(5) was issued to the petitioner. Petitioner submitted a reply dated

11.12.2023, which was accepted by respondent No.2 and Show Cause Notice was issued to the petitioner calling upon them to pay a sum of Rs.1,86,94,168/- towards liability payable on the value of security services received by them. The petitioner submitted a reply dated 09.01.2024 and after taking necessary proceedings, respondent No.1 passed the impugned order-in-original dated

21.03.2024, which is assailed in the present petition.

4. It is submitted that the issue regarding the liability of the petitioner to pay GST under reverse charge mechanism is covered by the judgment of this Court in the case of M/s. Zyeta Interiors Pvt. Ltd., and Anr Vs. The Vice Chairman Settlement - 4 - NC: 2024:KHC:35770 WP No. 17848 of 2024 Commission and Anr passed in W.P.No.9636/2020 dated

18.08.2021, which is confirmed by the Hon'ble Division Bench in W.A.No.42/2022 dated 07.04.2022 vide Annexure-P. It is therefore submitted that the impugned assessment order deserves to be set aside and the matter may be remitted back to respondent No.2 for verification of the payment made by service provider and to proceed further in the matter.

5. Per contra, learned counsel for respondents would support the impugned order and submit that there is no merit in the appeal and the same is liable to be dismissed.

6. As rightly contended by the learned counsel for the petitioner, the issue in controversy involved in the present petition as regards liability of the petitioner to pay GST under reverse charge mechanism is squarely covered by the decision of the Honb'le Division Bench of this Court in W.A.No.42/2022, wherein it has held as under: "This intra Court appeal is directed against the order dated 18.08.2021 passed in W.P.No.9636/2020, whereby the petition filed by the respondents – assessees has been allowed in part quashing the impugned part of the orders, matter was remitted to the Settlement Commission for - 5 - NC: 2024:KHC:35770 WP No. 17848 of 2024 consideration afresh in accordance with law and after notice to the stakeholders.

2. The respondent- M/s. Zyeta Interiors Pvt. Ltd., a company registered under the provisions of the Companies Act, 1956 is engaged in the business of carrying out design, supply and installation of interior works mainly for commercial establishments. The respondent is registered under the Service Tax Provisions ST Registration No.AAACZ3238JST001. Pursuant to the show cause notice dated 28.08.2018 issued by the Principal Additional Director General, Directorate General of Goods & Services Tax Intelligence [DGGSTI], the respondent had submitted an application dated 03.06.2019 for settlement of proceedings. The Settlement Commission after hearing the parties, ordered joint sitting of both the parties. Accordingly, the joint sitting was held on various dates. Both the parties submitted the joint sitting report before the Settlement Commission. The Settlement Commission passed the final order dated 24.03.2020 confirming the service tax amount of Rs.40,75,512/- along with interest and penalty of Rs.5,00,000/- and Rs.25,000/- respectively on the Director of the respondent company. The request made by the respondent for modification of the final order dated

24.03.2020 came to be rejected. Being aggrieved by the order dated 24.03.2020 passed by the Settlement Commission the respondent had approached the Writ Court. The learned Single Judge vide order dated 18.08.2021, allowed the Writ Petition in part quashing the impugned part of the orders and remitting the matter to the Settlement - 6 - NC: 2024:KHC:35770 WP No. 17848 of 2024 Commission for consideration afresh. Hence, this Writ Appeal by the Revenue.

3. The arguments of the learned counsel for the Revenue are two fold. Firstly, the assessee was required to strictly adhere to the provisions of Section 68[2] of the Finance Act, 1994 amended from time to time. In terms of the said provision, the ratio of 50:50 tax payable by the assessee and the service provider was altered to 75:25 with effect from 20.06.2012 vide 30/2012-ST and the same remained up to 01.04.2015. Thereafter, it was modified to 100% qua the consumer with effect from 01.04.2015. In terms of the said provision, the assessee was required to pay 75% of the tax. The tax paid in the ratio of 50:50 i.e., by the assessee and the service provider not being in conformity with the existing provisions of the Act applicable at the relevant time, the learned Single Judge ought not to have reversed the findings of the Settlement Commission in this regard.

4. Secondly, learned counsel respondent/assessees argued that the photocopies of the invoices not being the required documents to award CENVAT Credit prescribed under Rule 9 of the CENVAT Credit Rules, 2004, learned Single Judge remanding the matter to the Settlement Commission for re-consideration afresh is not tenable.

5. Learned counsel appearing for the assessee placing reliance on the CBEC Circular No.341/18/2004- TRU [Pt.], dated 17.12.2004 submitted that though the said - 7 - NC: 2024:KHC:35770 WP No. 17848 of 2024 Circular was issued with respect to Goods Transport Agency Service [GTA Service] on reverse charge payment, the same analogy would be applicable to the case on hand i.e., the man power service. The reverse charge mechanism should not lead to double taxation. The tax amount being paid in full by the assessee under the service provider in the ratio 50:50, the same cannot be construed as shortage of payment of tax.

6. Nextly, it was argued that the law enunciated by the Hon’ble High Courts of Bombay, Gujarat and Punjab & Haryana in the case of Commissioner of Central Excise, Goa V/s. Essel Propack Ltd., [(2015) 57 taxmann.com 52 (Bombay)]; Commissioner of Central Excise & Customs, Vadodara-II V/s. Steelco Gujarat Ltd., [(2013) 3 taxmann.com 388 (Gujarat); Commissioner of Central Excise V/s. Ralson India Ltd., [(2007) 6 STT 134] being considered by the learned Single Judge while arriving at a conclusion that no denial could be made in admitting the Photostat copies of the documents when there was no dispute as to input credit tax/service of the genuineness of the claim, the same do not warrant any interference by this Court.

7. It is submitted that the learned Single Judge has remanded the matter more particularly in the facts and circumstances of the case where the respondent-assessee has made it clear that they are ready and wiling to produce the originals of the invoices and hence seeks for dismissal of the Writ Appeal. - 8 - NC: 2024:KHC:35770 WP No. 17848 of 2024

8. Having considered the rival submissions of the learned counsel appearing for the parties and perusing the material on record, the two legal issues addressed by the Writ Court has been considered.

9. As regards the issue of double taxation, we find no exception. Whatever the ratio, the tax in its entirety has reached the hands of the ex-chequer. Merely for the reason that there was no strict adherence to the ratio as envisaged during the relevant point of time for payment of tax insofar as the assessee and the service provider, the assessee cannot be made liable to pay the double tax. What is significant to note is that the discharge of entire tax amount is not disputed. Thus, reverse charge mechanism would not lead to double taxation. We find no grounds to interfere with this finding of the learned Single Judge. Moreover, the CBEC Circular No.341/18/2004-TRU [Pt.], dated 17.12.2004 also supports the case of the assessee in this regard.

10. Insofar as the issue of photocopies of the invoices based on which no CENVAT Credit was allowed, it is pertinent to note that the learned Single Judge has remanded the matter for fresh consideration mainly on the ground that the assessee is ready and willing to produce the original invoices. Hence, adjudicating upon the issue of award of CENVAT Credit on the basis of the Photostat copies of the documents would become academic. In the present set of facts, without dwelling upon the said issue, more particularly, in view of the assessee being ready and - 9 - NC: 2024:KHC:35770 WP No. 17848 of 2024 willing to produce the original invoices, we are disposing of this case confirming the order of remand. Accordingly, the Writ Appeal stands disposed of directing the Settlement Commission to re-consider the matter afresh in accordance with law and after notifying the assessee and the Revenue. All the rights and contentions of the parties are left open. Resultantly, Writ Appeal stands disposed of in terms of the above."

7. As can be seen from the finding recorded by this Court at paragraph No.9 of the order, so long the discharge of entire tax amount is not disputed and reverse charge mechanism would lead to double taxation, petitioner cannot be made liable to pay double tax as held in the aforesaid order.

8. In my considered opinion, judgment of this Court in M/s. Zyeta Interiors Pvt. Ltd., and Anr Vs. The Vice Chairman Settlement Commission and Anr is directly and squarely applicable to the facts of the case on hand and present appeal deserves to be disposed of in terms of the aforesaid judgment.

9. In the result, I pass the following: - 10 - NC: 2024:KHC:35770 WP No. 17848 of 2024 ORDER i) Petition is hereby allowed. ii) Impugned order at Annexure-A is hereby quashed. iii) The matter is remitted back to respondent No.1 for verification as to whether the services provider has paid necessary GST and proceed further in accordance with law. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS List No.: 1 Sl No.: 30