Service Tax Audit Under GST Regime – Matter of litigation

Overview

Service Tax Audit (Department refers it as internal audit as per service tax audit manual) is conducted by Office of the Commissioner of Central Goods & Service Tax – Audit according to the provisions of rule 5A of Service Tax Rules, 1994 and follow Service Tax Audit Manual to process the service tax audit proceedings of service tax assessees.

Hon’ble Delhi High Court already declared rule 5A (2) of Service Tax Rules, 1004 to be ultra vires the provisions of Finance Act, 1994 in the case of Mega Cabs Pvt Ltd vs. Union of India 2016 (43) S.T.R. 67 (Del.). However, Hon’ble Supreme Court has stayed the operation of this Court Order and final decision in this respect is still awaited from Apex Court.

In view of stay order of Apex Court, it is unfair to discuss here the constitutional validity of rule 5A of Service Tax Rules, 1994.

Now in new era of GST regime, the department has made a assumption that they are duly authorized to initiate service tax audit as per the saving clauses of section 174 of CGST Act, 2017 and for the administration of service tax audit, special Service Tax Audit Commissionerate has been established.

Statutory Provisions For Conducting Service Tax Audit

W.e.f. 1^st July, 2017, CGST Act, 2017 was introduced and Chapter V of Finance Act, 1994 omitted vide Section 173 of CGST Act, 2017 with an exception “ save as otherwise provided in CGST Act, 2017”.

Relevant clause and sub-section are reproduced hereinbelow:-

(2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as “such amendment” or “amended Act”,) to the extent mentioned in the sub-section (1) or section 173 shall not –

e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed;

Department assumes that rule 5A of Service Tax Rules, 1994 read with clause (e) along with other clauses of Section 174(2) give authority for conducting service tax audit.

However, clause (e) along with other clauses of Section 174(2), prima facie, show that there is no saving of rule 5A in respect of initiating fresh proceedings of service tax audit. Hence, fresh audit proceedings can’t be initiated on or after 01^st July 2017.

Service tax audits which were under process on 01^st July, 2017 is undoubtedly valid as there is saving in present CGST Act, 2017. However, department is sending notices in bulk to service tax assessees for conducting service tax audit as per rule 5A of the Service Tax Rules, 1994 along with a long questionnaire.

In case assessee agrees to co-operate in conducting service tax audit, the department is only authorized to ask for the documents that have already been prepared or maintained by the assessee as per rule 5(2) of the Service Tax Rules, 1994 along with the cost auditor’s report and tax audit report u/s  44AB of the Income Tax Act, 1961. However, without having authority in law, department generally asks to submit :-

• the details and information in their specified format;
• to fill various forms as specified in service tax audit manual;
• to prepare reconciliation statement between ST-3 returns and profit and loss accounts;
• to provide reconciliation between ST-3 returns and 26AS;
• to submit 26AS of any financial year;
• to submit any return filed with bank/financial institution;
• to provide detailed note on business activities;
• to submit organization chart of the assessee;
• to submit internal audit reports, etc.

However, inspite of these restrictions, the department regularly asks assessee to submit the aforesaid details and information, out of which around 50% details are irrelevant.

Decision Of High Courts on Service Tax Audit Favourable To Service Tax Assessees

1. Hon’ble High Court of Gujarat in the case of M/s OWS Warehouse Services LLP vs. Union of India 2018 (19) GSTL 27 (Guj) where after noticing the judgment of this Court in Mega Cabs (supra) and the stay thereof by the Supreme Court, the Gujarat High Court nevertheless stayed a similar notice issued to the Petitioner in that case. The Gujarat High Court noticed that while enacting the Central Goods and Services Tax Act, 2017, there was no provision saving Rule 5A of the ST Rules to enable fresh proceedings for audit to be initiated under that rule for a period prior to the repeal of the Rule.

2. T. R. Sawhney Motors Private Limited v. UOI, WP(C) 2138/2019 & CM Appl. No. 10002/2019 (Stay) wherein the Court has relied the judgment of M/s. OWS Warehouse Services LLP vs. Union of India 2018 (19) GSTL 27 (Guj) and stayed the notices issued by assistant commissioner in respect of conducting audit.

3. Sulabh International Social Service Organisation v. UOI, 2019-TIOL-808-HC-JHARKHAND-GST wherein it was held that “In our prima facie view, the expression “instituted” in sub-clause(e) would imply the proceeding which stood already instituted at the time of repeal or omission of the 1994 Act. In such circumstances, we choose to follow the course taken by the Hon’ble High Courts of Gujarat and Delhi and direct status quo to be maintained till the next date of hearing so far as the proceeding which forms the subject matter of the present writ petition is concerned.

Decision Of High Courts on Service Tax Audit Favourable To The Department

1. M/S. Gitanjali Vacationville … vs The Union Of India & Anr on 15 January, 2019, wherein it was held that Prima facie, reading Sections 173and 174 of the Act of 2017, it appears that, an enquiry or an investigation or even a legal proceeding under the Act of 1994, is permissible notwithstanding the coming into effect of the Act of 2017. The authorities are proposing undertaking of an audit for the period when the Act of 1994 was applicable. The authorities are entitled to do so.

Conclusion

Department has separate Commissionerate for supervision of Service Tax Audits and they strongly believe about their authorization for conducting and completing audits. However, there are lot of ambiguities in the previous service tax law as well as current GST laws w.e.t. conducting service tax audit read with a lot of judicial pronouncements.

Where the assessee wants to challenge the service tax audit, the assessee can either approach the department to submit their views or alternatively knock the doors of the Court.

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Article is Authored by CA. Lalit Kr. Gupta & Co-Authored by CA. Neha Gupta. Author Can be reached:- calalitgupta@gmail.com.

Disclaimer:- Views expressed in the Article are the personal views of the Author based on his interpretation of Law. Views expressed should not be construed as professional advice or legal opinion. Article needs to be revised and revisited on any clarifications, circulars or notifications released after the date of article. The author will not be responsible for any error, omission, commission and result of any action taken by a participant or anyone on the basis of this presentation.