Durga Prasad Kancharla @ K.Durga Prasad V. Assistant Commissioner of Central Tax, Himayathnagar Division and Superintendent of Central Tax, 0/0 the Assistant Commissioner of Central Tax, Himayathnagar Division and Principal Commissioner of Central Tax, Hyderabad CGST Commissionerate and Chief Commissioner of GST and Customs, Hyderabad Zone and Union of India, Represented by its Secretary, Ministry of Finance, Department of Revenue

WP/6381/2024

AI Insights

The case involves a writ petition filed by K. Durga Prasad, an advocate, challenging an order-in-original that imposed a service tax on his income from legal services for the financial year 2016-17. The petitioner argued that he was exempt from service tax under specific notifications issued by the Government of India. The respondents, including various tax authorities, contended that the exemption applied only to certain categories within the legal profession and that the petitioner had not responded to previous notices. The court found that the authorities had not adequately addressed the applicability of the exemptions to the petitioner and noted procedural deficiencies in the issuance and service of notices.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 811041 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 12-03-2024
• Assessment Year: misc
• Laws Referred To: Finance Act, 1994, Central Goods and Services Tax Act, 2017, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: DOMINIC FERNANDES; B MUKHARJEE
• Assessee Lawyers: A V A KARTIKEYA
• Keywords: GST Exemption; Legal profession; Mandamus; Natural Justice; Service tax; Writ petition
• Section: 17(4)(2)

Judgement Text

"HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION NO: 6381 OF 2024 [ 337e ] ...PETITIONER Between: AND 1 ttlr. Durga Prasad Kancharla @ K.Durga Prasad, S/o: Sri K.Narayana Rao, Aged 65 years, Occ: Advocate, H. No. 89, 5-10-194, Chakrapani Estate, Kalanjali Building, Saifabad, Hyderabad - 500 029, Telangana. 2 The Assistant Commissioner of Central Tax, Himayathnagar Division, H. No: 3-6-436/1 to 438/1 , 1't Floor, Naspur House, Himayathnagar, Hyderabad - 500 029, Telangana. The Superintendent of Central Tax, 0/0 the Assistant Commissioner of Central Tax, Himayathnagar Division, H. No.- 3-6-436 t1 to 438t1,1'( Floor, Naspur House, Himayathnagar, Hyderabad - 500 029, Telangana. The Principal Commissroner of Central Tax, Hyderabad CGST Commissionerate, Hyderabad, Posnett Bhavan, Tilak Road, Ramkoti, Hyderabad - 500 001, Telangana. The Chief Commissioner of GST and Customs, Hyderabad Zone, GST Bhavan, L.B. Stadium Road, Basheerbagh, Hyderabad - 500 004, Telangana. Union of lndia, Represented by its Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi - 110 001. 4 5 ..,RESPONDENTS Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction one in the nature of Mandamus' declaring the order of the 1't Respondent [Order - in - Original No.: 8912023-24 ' S.Taxl dated 1410812023 (served on 1511212023), vide DIN- 20230856YN00OO712487, under the provisions of the Finance Act, 1994 r/w f Sec.17 4(2) of the Centtal Goods and Servrces Tax Act, 2O17, for the period 2016 - 17, as bad in law, arbitrary, mechanical, violative of princip,les of natural justice, without jurisdiction, barred by limitation and in direct violati()n of the law and the orders passed by this Honorable Court, set aside the sanre, and consequently direct the Respondents to drop all further proceedings in this regard. IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Stay all further proceedings, pursuant to the order of the 1't Respondent (Order - in - Original No.: BO|2O23-24 - S.Tax) dated 1410812023 (served on 15.12.2023), vide DIN- 20230856YN000071 2487, under the provisions of the F inance Act, 1994 r/w Sec. 17 4(2) of the Central Goods and Services Tax Act, 201'7 , for the period 2016 - '1 7 pending disposal of the above Writ Petition. Counsel for the Petitioner: SRI A. V. A. SIVA KARTIKEYA Counsel for the Respondent Nos.1 to 4: SRI DOMINIC FERNANDES (senior standing counsel for CBIC) Counsel for the Respondent No.5: SRI B. MUKHARJEE, APPEARING FOR SRI GADI PRAVEEN KUMAR, DEPUTY SOLICITOR GENERAL OF INDIA The Court made the following: ORDER Es*', I THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUI(ARAMJI WRIT PETITION No.6381 OF 2024 ORDER:(per Hon'ble Si Justice P.SAM KOSHY) Heard Mr. A.V.A. Siva Kartikeya, learned counsel for the petitioner, Mr. Dominic Fernardes, iearned Senior Standing Counsel for respondent Nos.1 to 4 and Mr. B.Mukharjee, learned counsel appearing on behalf of Mr. Gadi Praveen Kumar, learned Deputy Solicitor Genera.l of India, appearing for respondent No.5. Perused the material available on record 2. The present Writ Petition is frled assailing the order-in-original No.8912023-24 S.Tax, dated 14.08.2023, passed by respondent No.1 holding that the petitioner is liable to pay service tax from the income earned from his profession, which is a legal profession. 3. The primary contention of the learned counsel of the petitioner is that the Government of India itself vide its notification Nos.12 and 13 of 2Ol7 under the GST law and notification Nos.25 and 30 of 2OL2 under the Service Tax w 2 have specifically exempted the lawyers from the purview of the service tax as also from the purview of the GST. This fact is not controverted by the learned counsel for the Department. 4 . Perusal of the impugned order, what reflect is that the authorities concerned have primarily proceeded and passed upon the information that they had collected from the Income Tax Department. There is specific averment of fact by the petitioner that no notice whatsoe.rer was eithr:r served upon him before the impugned order vl.as passed. 5. Learned Stalding Counsel for the Depa:tment is a-lso not in a position to establish whether the atleged notices which were issued have been duly servt:d upon the petitioner or not. 6. At this juncture, learned Standing Corrnsel for the Department submits that from the Income Ta< Return that has been submitted by the petitioner, it appeirs that he is in legal profession, but the entire professionals in the legal field are not exempted and the exempti tn is made 3 applicable to certain categories in the legal profession. He further submits that whether the petitioner falls in the said category or not was supposed to be replied by the petitioner himself, but in spite of notices, the petitioner has not responded to the same. 7 . Be that as it may, considering the notifications issued by the Government of India vide notification Nos.25/20 12- Service Tax dated 20.06.2072 and 3O/2Ol2-Service Tax, dated 20.O6.2012, we are of the considered opinion that respondent No.l has not given any hnding as to how the petitioner does not fall under the exempted category mentioned in the a-foresaid two notifications. 8. Further, there is a-lso insufficient material to show that the notices which were issued to the petitioner before the impugned order was passed were effectively served upon the petitioner or not. For the aforesaid reasons, we are inclined to set aside the impugned order. 9. Accordingly, the order-in-original No.a9 12023-24 I I S.Tax, dated 14.08.2023, passed by respondent No.1, 4 stands set aside/quashed. The petitioner is directed to submit reply to respondent No. 1 by lO.O4 .2O'.a4 treating the impugned order itself as a show cause notice. Upon the sarne, respondent No.1 shall consider the same and take appropriate decision strictly in accordance u'ith larv, particularly considering the a-foresaid two notifications 10. Accordingly, the Writ Petition is allowec. No order as to costs. Consequently, miscellaneous petitic,ns pending, if any, shall stand closed. SD/-MOHD. ISM ASS.ISinur Rectsr R L C //TRUE COPY// SECTION OFFICER To,,li1f.%li Tl3.\",ti!?.i:i31\",{:\"il.Ifl Jfr TH?;jilfl%'i,:'t'J:i:#}' 'ii1$q#luffift4'J.##frd.f-f,{,,{'prffi::'::'*\" ' i?ffi n[i:;?iilrltle ru*':*::'J]: \",; b a d Z. ne G sr 'I[::i,':r,:B{:t',:fl\"fl :i:\"u-uip;,:s,':?'[s^'\"\"J:BS::iH\"\"'i':ifil\"T' s iii\" d\"i*t,ry' Union.of lndia' Ministry ol Frnance' tEi;gE\"i3-.+;,$I.p,;;]i'#.\",',]-ilffi{rFl:id:ffi ::t'rid''\"'\"' roPucl iwo CD CoPies 9. TJ GJP HIGH COURT DATED:1210312024 ORDER WP.No.6381 of 2024 ALLOWING THE WRIT PETITION WITHOUT COSTS. 7pL? i I j I "