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Stay by sc on delhi hc verdict on service tax audits

Sumit Grover (Chartered Accountant ) (3652 Points)

22 December 2014

Hon'ble Supreme Court granted stay of operation of recent verdict pronounced by Hon'ble High Court of Delhi in the matter of UNION OF INDIA & ORS. v. M/S TRAVELITE (INDIA) in which HC held that the service tax audits are not backed by law.

https://courtnic.nic.in/supremecourt/temp/348722014118122014p.txt

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Manish K.Gandhi (Superintendent) (966 Points)
Replied 22 December 2014

A Good Order. In fact As per Supreme Court judgment in the case of Income Tax Officer v. M.K. Mohammed Kunhi reported in [1969] 71 ITR 815 (SC) : AIR 1969 SC 430m, it is held that Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Also in case of Union Of India Vs Paras Laminates (P) Ltd.[ 1990 (49) E.L.T. 322 (S.C.)] it is held that Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised.

Another aspect is that the Supreme Court in case of Collector Of Customs, Calcutta vs East India Commercial Co. Ltd on 30 April, 1962, held that the law declared by the highest court in the state is binding on the authorities or tribunals under its superintendence, and they can not ignore it. The decision of the High Court is binding on the subordinate courts and authorities or tribunals under its superintendence throughout the territories in relation to which it exercise jurisdiction. It doesn’t extend beyond its territorial jurisdiction. Accordingly, Travelite judgment is not binding all over India.

However, now

Sub-section (2) of section 94, dealing with specific purposes for which rules can be made, was amended with effect from 06.08.2014, vide Section 114(J) of the Finance Act, 2014, and a new clause (k) was added to sub-section (2) of section 94, which is reproduced below –

“(k) imposition, on persons liable to pay service tax, for the proper levy and collection of tax, of duty of furnishing information, keeping records and the manner in which such records shall be verified.”