Case Law Details
Prashanth Sreedhar Shenoi Vs ASSISTANT COMMISSIONER OF
CENTRAL TAX (Karnataka High Court)
Introduction: The Karnataka High Court recently ruled on the imposition of service tax for legal services provided by advocates and senior advocates under the reverse charge mechanism (RCM). This landmark judgment sheds light on exemptions, liability, and the legal obligations of service recipients.
The Hon’ble Karnataka High Court in the case of Prashanth Sreedhar Shenoi v. Assistant Commissioner (Central Tax) Bangalore [Writ Petition No. 26096/2022 dated April 22, 2024] allowed the writ petition and held that, the services of legal professionals consisting of partnership firm of Advocates or an individual Advocate other than a Senior Advocate is exempt from levy of service tax to an advocate or partnership firm of advocates providing legal services to any person other than a business entity or a business entity with a turnover upto ten lakh rupees in the preceding financial year. Also, even when the individual advocate or partnership firm of advocate or senior advocate does not fall within the purview of the exemption notification, the service recipient is liable to pay service tax on the aforesaid services on reverse charge basis.
Facts:
Mr. Prashanth Sreedhar Shenoi (“the Petitioner”) and other related Petitioners are practicing Advocates and have questioned the veracity of the show cause notice, order-in-original and recovery notice issued by the Revenue Department (“the Respondent”) by way of filing the writ petition before the Hon’ble High Court praying for setting aside the Impugned Order and quashing the proceedings initiated by the Respondent as per the Impugned Order.
Issue:
Whether service tax is leviable on services rendered by the Advocate and Senior Advocate?
Held:
The Hon’ble Karnataka High Court in the case of Writ Petition No. 26096/2022 held as under:
- Noted that, as per Clause 6(b) of Notification No. 25/2012-ST dated June 20, 2012 (“the Exemption Notification”), the services of legal professionals consisting of partnership firm of Advocates or an individual Advocate other than a Senior Advocate is exempt from levy of service tax to an advocate or partnership firm of advocates providing legal services, any person other than a business entity or a business entity with a turnover upto ten lakh rupees in the preceding financial year.
- Opined that, even when the individual advocate or partnership firm of advocate who do not fall within the purview of the exemption notification, the service recipient is liable to pay service tax on the aforesaid services.
- Further Opined that, in case of Senior Counsel, the recipient of the service is liable to pay service tax.
- Held that, the Impugned Order and Recovery Notice is set aside.
Our Comments:
As per Circular No. 27/01/2018-GST dated January 04, 2018, the GST has to be paid on reverse charge basis by the business entity in case of legal services including representational services provided by an Advocate including Senior Advocate to the business entity.
Also, As per S. No. 45(b) of Services Exemption Notification no. 12/2017-Central Tax (Rate) dated June 28, 2017 , any services provided by a partnership firm of advocates or an individual as an advocate other than a senior advocate, by way of legal services to (i) an advocate or partnership firm of advocates providing legal services; any person other than a business entity, or (ii) any person other than a business entity; or (iii) a business entity with an aggregate turnover up to such amount in the preceding financial year, which makes it eligible for exemption from registration under GST; (iv) the central government, state government, union territory, local authority, governmental authority or government entity are exempted from GST.
Further, as per S. No. 45(c) of Services Exemption Notification no. 12/2017-Central Tax (Rate) dated June 28, 2017, any services provided by a senior advocate by way of legal services to
(i) any person other than a business entity; or (ii) a business entity with an aggregate turnover up to such amount in the preceding financial year, which makes it eligible for exemption from registration under GST; or (iii) the central government, state government, union territory, local authority, governmental authority or government entity are exempted from GST.
Conclusion: The judgment by the Karnataka High Court clarifies the obligations regarding service tax on legal services provided by advocates and senior advocates. While exemptions exist under specific circumstances, the ruling underscores the importance of understanding the reverse charge mechanism. Taxpayers and legal professionals should heed these insights to ensure compliance with the law.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
1. In all these writ petitions, Practicing Advocates have called in question the show-cause notice, and in some cases order in original and recovery notices issued by the respondent Central Tax Department whereby Service Tax is sought to be levied.
2. In light of the similar contentions raised, writ petitions are clubbed and are taken up together and decided by a common order.
3. The table reflecting the relief sought for is as below:
| Sl. No. |
W.P. No. | Prayer Sought |
| 1. | W.P. No. 26096/2022 | A. Issue a Writ of certiorari quashing the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure A.
B. Issue a Writ of certiorari quashing all proceedings under the Impugned Order-In-Original dated 14.10.2022 bearing No. 263/2022 SD-4 /2733/22 issued by the Respondent at Annexure A. |
| 2. | W.P. No. 10865/2021 | A. Issue a writ of certiorari to quash impugned Show Cause Notice dated 27.04.2021 bearing SCN No. 123/2021-22 JC and having Digital Identification No. (‘DIN’) 20210457YV000000DC2F, enclosed as Annexure A.
B. Writ of declaration to declare that the provisions of Section 174 of Central Goods and Services Tax Act, 2017, enclosed as Annex ure B, as unconstitutional. |
| 3. | W.P. No. 8414/2022 | A. Issue a writ of certiorari to quash the impugned Show Cause Notice dated 23.04.2021 notice bearing Reference No. 132/ST/2021-SD3 934/2021, issued by the respondent, enclosed as Annexure A.
B. Issue a writ of certiorari to quash impugned Order-In-Original bearing C. No. 132/ST/2021-SD3-1605/22 dated 26.03.2022, passed by the |
| 4. | W.P. No. 10776/2022 | A. Issue Writ of Certiorari quashing the Order dated 30.03.2022, passed in Order-In-Original bearing DIN.: 2022035700000000E4FB, vide Order Serial No.: 45-46/2022-SD2, passed by Respondent No. 3 vide Annex ure J.B. Issue writ of mandamus to the respondent authorities to refrain from further proceedings and take such necessary measures/steps in respect of the order dated 30.03.2022, passed in Order-In-Original bearing DIN.: 2022035700000000E4FB, vide Order Serial No.: 45-46/2022-SD2 passed by Respondent No. 3 vide Annex ure J.C. Issue Writ of Prohibition, not to proceed further steps or measures or any such kind of initiatives pertaining to recovery(s) over the impugned demand made thereof vide Annexure J directing the respondent authorities to refrain from further coercive steps in any manner whatsoever in nature, in accordance to the order dated 30.03.2022, passed in Order-In-Original bearing DIN.: 2022035700000000E4FB, vide Order Serial No.: 45-46/2022-SD2 passed by Respondent No. 3 vide Annexure J. |
| 5. | W.P. No. 18943/2022 | A. Issue a writ of certiorari to quash the impugned Order-In-Original in OIO 57/2022-23 ST ND4 dated 29.07.2022 passed by Respondent in Annexure D. |
| 6. | W.P. No. 26558/2023 | A. Issue a writ of certiorari quashing the Recovery Notice issued by the Respondent No. 4 at Annexure C bearing No. IV/16/84/2021 CWD 3 dated 27/09/2023 in so far as the Petitioner is considered.B. Issue a writ of certiorari quashing the impugned Order-In-Original vide order No. OIO No. 68/2022-23 dated 28.12.2022 passed by Respondent No. 3 in Annex ure E in so far as the petitioner is concerned.C. Issue Writ of Declaration that the Petitioner is not liable to pay the Service Tax or liable to be registered under Service Tax, as petitioner is under the Reverse Charge Mechanism, in so far as the Petitioner is concerned. |
4. The contentions raised by both sides are referred to while analysing contentions of the parties for the purpose of maintaining brevity in the order.
5. Insofar as legal services rendered by individual advocates or firm of advocates, the person liable to pay service tax in terms of the Service Tax Rules, 1994 [for short ‘Service Tax Rules’] namely Rule 2 (1) (d) (D) (II) is the individual advocate or firm of advocates who offer legal services.
6. In terms of Notification No. 25/2012-ST dated 20.06.2012 passed in exercise of power under Section 93 (1) of the Finance Act, 1994 the Central Government has exempted certain taxable services from the whole of the service tax leviable under Section 66B of the Finance Act, ‘994. Amongst the services exempt, it includes services of legal professionals consisting of Partnership Firm of Advocates or an individual Advocate other than a Senior Advocate.
Clause 6(b) of the Exemption Notification’ provides as follows:
“(b) a partnership firm of Advocates or an individual as an advocate other than a senior advocate, by way of legal services to –
(i) an advocate or partnership firm of advocates providing legal services;
(ii) any person other than a business entity; or
(iii) a business entity with a turn over up to rupees ten lakh in the preceding Financial Year;”
7. Even where individual advocates or partnership firm of advocates who fall outside the exemption under the Notification 25/2012-S T, the person liable to pay service tax is the recipient of the service.
8. In terms of Notification No.30/2012-S T dated 20.06.2012, liability is imposed as follows:
” … The Central Government hereby notifies the following taxable services and the extent of service tax payable thereon by the person liable to pay service tax for the purposes of the sub-section, namely: –
I. xxx
II. The extent of service tax payable thereon by the person who provides the service and any other person liable for paying service tax for the taxable services specified in paragraph I shall be specified in the following table, namely:-
| Sl. No. | Description of a Service | Percentage of Service Tax payable by the person providing the service | Percentage of Service Tax payable by the person receiving the service |
| 5 | In respect of services provided or agreed to be provided by individual Advocate or a Firm of Advocates by way of legal services, directly or indirectly | NIL | 100% |
9. In the case of Senior Advocates it is to be noted that Rule 2 of the Service Tax Rules, Clause (d) provides for “person liable for paying service tax” and lists out at Clause (DD) as follows:
“(DD) in relation to service provided or agreed to be provided by a senior advocate by way of representational services before any court, tribunal or authority, directly or indirectly, to any business entity located in the taxable territory, including where contract for provision of such service has been entered through another advocate or a firm of advocates, and the senior advocate is providing such services, the recipient of such services, which is the business entity who is litigant, applicant, or petitioner, as the case may be.”
Accordingly, it is clear that where Senior Counsel are engaged, the obligation to pay service tax is on the recipient of such services. If that were to be so, there is no obligation on the Senior Counsel to pay service tax.
10. In light of the above, individual lawyers and Partnership of firm of Advocates, Senior Advocates are exempted from payment of service tax under certain circumstances.
11. In W.P.No.10776/2022, the petitioner advocate has income from sale of books, apart from income from profession.
It must be noted that the liability under Section 73 of the Finance Act, 1994 provides for liability on “the person chargeable with service tax”, Section 66B of the Finance act 1994 provides for levy of tax on “value of all services’. In terms of the negative list of services under Section 66D of the Finance Act, 1994, the negative list excludes under item (e) “trading of goods”. Accordingly, income from sale of goods (books) will be excluded from the purview of service tax.
12. The contention of the Department is that there is a separate statutory remedy and that petitioners ought not to be permitted to short cut such statutory remedy by recourse to the present proceedings. It is also contended that there are disputed questions that ought not to be made subject matter of adjudication in the proceedings under Article 226 of the Constitution of India.
It must be noticed that availability of alternative remedy is not a blanket bar for entertainability of a writ petition. In the case of the advocates who are practicing, it is clear that there is an exemption, which aspect comes out clearly from Clause-6(b) of the Exemption Notification2, which is passed in exercise of power under Section 93 (1) of the Finance Act, 1994.
The services rendered to a business entity with a turn over above rupees ten lakh would fall outside the purview of the exemption, however, in such of those cases also, in terms of Notification 30/2012-S T dated 20.06.2012, the liability is on the recipient by way of reverse charge mechanism.
In light of such legal position, there is no factual adjudication, but on the basis of applicable law, the service rendered by advocates is exempt and even if it falls outside the exemption, the liability is on the recipient of the services and not the legal professional.
13. The notices and orders are clearly without jurisdiction in light of exemption and even otherwise on the ground of reverse charge mechanism. In light of the memos filed by the Advocates, the assertion that there is no income other than income from profession needs to be accepted. Only in one of the matters there is income from sale of books that falls outside the purview of service tax.
Clearly in light of such narrow factual context the notices and orders are one without jurisdiction and challenge can be entertained directly irrespective of the alternate legal remedy that is available. As also laid down by the Apex Court in Radha Krishan Industries v. State of Himachal Pradesh and Others [ (2021) SCC 771]3 that the High Court can entertain a writ petition despite there being an effective alternative remedy when the orders/proceedings impugned are wholly without jurisdiction.
14. Accordingly, it would be futile exercise in relegating the petitioners to avail of statutory remedy. It is a case which provides for entertainability of the writ petition on the settled legal position and on the ground that the proceedings are one without jurisdiction and hence can be entertained.
15. Hence, the legal position not being in dispute, the contention of learned counsel for the Revenue requires to be rejected.
16. With this legal position in view, the factual matrix of the petitions need to be taken note of and law applied to dispose off the petitions.
I Re: W.P. No. 10776/2022
The petitioner is an Advocate and has income from consultation fee. In light of the discussion made above, income from such service by an Advocate is exempt and even if it falls outside the exemption, it is the recipient who has to pay on the basis of reverse charge mechanism and accordingly, the initiation of proceedings are one without jurisdiction insofar as claim of service tax as regards consultation fee.
Memo is also filed on 02.02.20224 to the effect that except income from advocacy and sale of books, there is no other income. As referred supra, taxable event of sale of books would fall within the category of sale of goods and is outside the purview of service tax.
II Re: W.P. No. 18943/2022
The document furnished by the petitioner would indicate that it is income from profession as well as income from services rendered as a Notary. This is evident from the profit and loss account entry.
Memo is filed on 08.02.2024 stating that income is only from legal profession.
In terms of the reasoning supra, such income is exempt from service tax and even otherwise, recipient would have to pay on reverse charge mechanism.
Accordingly, the order in original is one without jurisdiction.
III Re: W.P.No.26558/2023
Petitioner is an advocate and has filed a memo on 12.02.2024 stating that except professional income, he has no other source of income and on the same legal logic referred to supra, the order passed by the revenue is one without jurisdiction.
IV Re: W.P.No.26096/2022
The petitioner is a partner of the Firm of lawyers, ‘Crest Law Partners’. It is stated that there was no notice to the petitioners. The statement of income enclosed along with the papers would indicate that income is from the Partnership Firm of Advocates.
Memo filed on 03.02.2024 that income is only from providing of legal services. The petitioner has flied another memo dated 19.03.2024 to the effect of declaration that the income of petitioner is only from legal profession.
In light of the legal logic referred to above, the proceedings initiated by the revenue are one without jurisdiction.
V Re: W.P.No.10865/2023
Petitioner is an advocate and now a Senior Counsel. The memo dated 07.02.2024 provides that ‘income from business/profession’ is income in the present factual matrix from professional practice as advocate and that there is no other income from any other business/profession.
The petitioner has filed a memo dated 20.03.2024, submitting that in terms of Section 28 of the Advocates Act, 1961 read with Rule 47 of the Bar Council of India Rules, 1975, an advocate shall not be permitted to engage himself in any other business. It is further submitted that in terms of Entry No.11 to Part I of the First Schedule to the Chartered Accountants Act, 1949,
similar restriction is imposed on the chartered accountants from engaging in any other business or profession. Accordingly, it is submitted that the petitioner while enrolling himself into the legal profession had surrendered his certificate of practice as a Chartered Accountant.
Taking into consideration the memo dated 20.03.2024 it could be construed that the petitioner is engaged in legal profession only.
In light of the reasoning made out above, the proceedings are one without jurisdiction.
Though the petitioner has challenged the constitutional validity of provisions of Section 174 of Central Goods and Service Tax Act, 2017, no argument has been advanced regarding the said prayer. Further, as relief is being granted, question of entering into constitutional validity does not arise. The court ought not to enter into issues of constitutional validity when otherwise matter could be disposed off on its merits.
VI Re: W.P.No.8414/2022
The petitioner is a practicing advocate and it is contended that the proceedings are one without jurisdiction.
Memo is filed on 08.02.2024 declaring income is from profession of practicing as an advocate and there is no other income from any other profession.
In light of the reasoning made above, the proceedings initiated by the revenue are one without jurisdiction.
17. Accordingly this court pass the following:
ORDER
(i) The order dated 30.03.2022 bearing DIN No. 2022035700000000E4FB vide Order-In-Original No.45-46/2022-SD2 passed by respondent No.3 at Annexure-J, W.P.No.10 776/2022 is set aside.
(ii) The order dated 14.10.2022 bearing DIN No.2022105 70000003164E 7 vide Order Sl.No.263/2022 SD-4/2 733/22 at Annexure-A in W.P.No 26096/2022 is hereby quashed.
(iii) The show cause notice dated 23.04.2021 bearing Reference No.132/ST/2021-SD3 934/2021 at Annexure-A and the Order-In-Original bearing C.No.132/ST/2021-SD3-1605/2022 dated 26.03.2022 at Annexure-B in W.P.No.8414/2022, are hereby quashed.
(iv) The show-cause notice dated 27.04.2021 bearing SCN No.123/2021-22 JC at Annexure-A in W.P.No.10865/2021 is set aside.
(v) The Order-In-Original No. 57/2022-23 ST ND4 dated 29.07.2022 at Annexure-D in W.P.No.18943/2022 is hereby quashed.
(vi) The recovery notice bearing C.No.IV/16/84/2021 CWD 3 dated 27/09/2023 at Annexure-C and the Order-In-Original dated 28.12.2022 bearing No.68/2022-23 at Annexure-E in W.P.No.26558/2023 are hereby quashed.
Note:-
1 Notification No. 25/2012-ST dated 20.06.2012
2 Notification No. 25/2012-ST dated 20.06.2012
3 The relevant observations are as follows:
“27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.”
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