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Analysis of the Delhi HC judgment striking down Service Tax audit

June 8, 2016

Delhi HC strikes down Rule 5A(2) of Service Tax Rules, 1994

Mega Cabs Pvt. Ltd. v. Union of India & Ors.

 

In a major battle we have been waging for many years the Delhi HC has again given a favorable judgment stating that the department does not have any power to conduct under under the provisions of Finance Act, 1994. Ruling of Delhi HC, striking down, the amended Rule 5A(2), which empowered service tax authority to conduct general audit in the guise of ‘verification’, will provide the much needed relief to the tax payers from both time and cost perspective.

 

It categorically held in Para 39 of the judgment that "There is a distinction between auditing the accounts of an Assessee and verifying the records of an Assessee. Audit is a special function which has to be carried out by duly qualified persons like a Cost Accountant or a CA. It cannot possibly be undertaken by any officer of the Service Tax Department."

 

Executive Summary of the decision

  • Rule 5A(2) of the Service tax rules even after amendment is ultra-vires the act and is therefore struck down to that extent.

  • Also held the word "verify" in Sec 94 of the FA, 1994 cannot be construed to mean audit of the accounts of the assessee and therefore audit cannot be sustained. HC disagreed with the submission that the expression 'verify' is wide enough to permit the audit of the accounts of the assessee by any officer of the Service Tax Department. There is a distinction between auditing the accounts of an assessee and verifying the records of an assessee.

  • declares the Circular No. 181/7/2014-ST dated 10th December 2014 of the Central Government to be ultra vires the FA and strikes it down as such.

  • Declares that the CBEC Circular No. 995/2/2015-CX dated 27th February 2015 on the subject ―Central Excise and Service Tax Audit norms to be followed by the Audit Commissionerates‖ and the Central Excise and Service Tax Audit Manual 2015 issued by the Directorate General of Audit of the CBEC are ultra vires the FA, do not have any statutory backing and cannot be relied upon by the Respondents to legally justify the audit undertaken by officers of the Service Tax Department.

 

 

Key findings of the judgment

 

  1. Sec 72 - It is not to applied mechanically by the department based on their whims and fancies. Further, it is not any or every officer of the Service tax department who can exercise the power thereunder. The function of making an assessment has to be assigned to such officer who is entrusted with such power who can proceed to ask for the documents, records, accounts etc.

  2. Sec 82 (power to search) - The power to search by the department is very limited and cannot be executed as and when desired by the department. it needs to be established beyond doubt that (a) The assessee has concealed books of accounts ;(b) Such books are relevant to the proceedings. Thus Sec 82 is not without restriction and cannot be used mechanically by the department.

  3. Analysis of CBEC circulars and manuals - Audit Manual of 2011 was held to not have any statutory force in the case of Travelite (India). Earlier manual has been replaced by Audit Manual 2015 which again fails to acknowledge that there is no statutory backing for the officers of the Department to undertake an audit of the assessee’s accounts and records. This lacuna pointed out by the Court in Travelite (India) has not been set right. As pointed out in Ratan Melting & Wire Industries, a circular or a manual cannot travel beyond the scope of the statute itself. It will have no binding effect if it does so.

  4. Rule 5A(2) of the Service Tax Rules -

  • Assessee contended that it does not have any problem in providing records but would only do so to a CA/Cost Accountant appointed in terms of Sec 72A of the act and not to the officers appointed for "verification".

  • Even CAG does not have power in terms of the above rule to audit the books of the assessee since there is no provision against the same in the main act itself.

  • Based on legal principles laid down in certain judicial precedents, HC concluded that Rule 5A(2) of ST Rules exceeds the scope of the provisions under the Finance Act.

  • Under the garb of the rule making power, CG cannot arrogate to itself powers which were not contemplated to be given to it by the Parliament when it enacted the Finance Act. This is an instance of the Executive using the rule making power to give itself powers which are far in excess of what was delegated to it by the Parliament.

 

Our Comments

Ruling of Delhi HC, striking down, the amended Rule 5A(2), which empowered service tax authority to conduct general audit in the guise of ‘verification’, will provide the much needed relief to the tax payers from both time and cost perspective. The binding nature of this ruling and its applicability in other jurisdictions will however need to be examined. Government should be mindful of facilitating ease of doing business before attempting any further amendment in the provisions to overcome yet another ruling of Delhi HC in this regard. Supreme Court will have a final say in the matter when it disposes the Revenue’s appeal in Travelite case, where the decision of Delhi HC has been currently stayed.

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