Shri Parshottam Parkash vs Commissioner Of Service Tax, ...
2011 Latest Caselaw 1833 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 CEAC NO.13/2010 & CM NO.16125/2010

%
                      Date of Decision: 29.03.2011

Shri Parshottam Parkash                         .... APPELLANT
               Through: Mr.Jos Chiramel, Advocate

                                Versus

Commissioner of Service Tax, Delhi-I          .... RESPONDENT
              Through: Mr.Satish Kumar, Sr. Standing Counsel.

CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA


1.   Whether reporters of Local papers be                 No
     allowed to see the judgment?
2.   To be referred to the reporter or not?               No

3.   Whether the judgment          should   be            No
     reported in the Digest?


M.L. MEHTA, J. (ORAL)

*

1. This is an appeal against the order dated 08.06.2010 of

Customs, Excise & Service Tax Appellate Tribunal (CESTAT).

Vide this order, appellant was directed to make a pre-deposit of

Rs.20.00 lakh in addition to already deposited sum of Rs.5.00

lakhs. The appeal has been filed challenging the impugned

order on various grounds. We have heard the learned counsel

appearing for the appellant as well as for the respondent. Since

the impugned order relate to pre-deposit of Rs.20.00 lakhs, we

need not go into the details of facts except mentioning in brief

that appellant has averred that he has no concern whatsoever of

any kind with M/s.Star Shine Cable Network, which is the

proprietary concern of his daughter-in-law, Ritu Prakash. The

registration certificate of said firm was issued in the name of his

son, Vikram Prakash, as its proprietor. Vikram Prakash has also

filed an affidavit before the authorities under Entertainment &

Betting Tax Act and had also written a letter to the Taxation

Officer with regard to entertainment liability. The said firm was

operating from its commercial premises at 118, R.G. Complex,

DDA Market, Sector 14, Rohini, which was owned by Ritu

Prakash, however, the licence had been obtained by them from

his residential premises, i.e., Flat No.407, Savera Apartment,

Rohini. It is submitted that when the raid was conducted at the

premises No.118, R.G. Complex, DDA Market, Sector 14, Rohini,

Suresh Bhutani, father of Ritu Prakash, who was present there,

informed the searching officers that his daughter, Ritu, is the

proprietor. Bank account of the firm was also stated to be

operated by Ritu Prakash. It is averred that service tax

authorities issued the notice in the name of the firm at his

residential address, 407, Savera Appartments, Rohini. He

appeared in response to the notice before the authorities and

informed about his having no concern with the said firm. Ritu

Prakash on her part also wrote a letter to the Commissioner,

Service Tax, stating herself to be an employee of the said firm

and also having resigned therefrom. He also replied to a show

cause notice of the service tax authorities informing them to be

having no concern with this firm. On 4th March, 2008, Additional

Commissioner, Service Tax, passed assessment order in respect

of the said firm holding the appellant as its proprietor and

framed a liability of Rs.46.00 lakhs. He filed appeal before the

Commissioner, Excise (Appeals), who affirmed the order of the

Additional Commissioner. Against the order of the Commissioner,

Excise (Appeals), he filed appeal before the CESTAT, which also

came to be dismissed by the impugned order. The appellant

stated that he is aged about 80 years and has undergone eyes

operation and has no concern whatsoever of any kind with the

aforesaid firm.

2. During the course of arguments, the learned counsel appearing

for the appellant also drew our attention to an order passed by

another Division Bench of this Court dated 31st January, 2001 in

the writ petition filed by the appellant. That case related to

demand of entertainment tax from the appellant by the

concerned authorities, which was disputed by the appellant on

the similar lines as in the present case. In the said case, the pre-

deposit order was modified by the Division Bench on the similar

submissions as made by the appellant before us as noted above.

3. It was not disputed by the learned counsel appearing for the

respondent that the averments raised by the appellant herein

need to be decided on merits by the appellate authority in view

of the issue raised by the appellant with regard to his liability.

The impugned order has been passed on a prima facie view of

the appellate authority. Keeping in view the averments raised by

the appellant and the fact that he is an aged person of about 80

years and has no source of income of his own and the fact that

he has already deposited a sum of Rs.5.00 lakhs as a pre-deposit

for hearing the appeal, we are of the view that the pre-deposit

order of an additional amount of Rs.20.00 lakhs is not justified.

In the given circumstances, we set aside the impugned order to

the extent of asking for the pre-deposit of Rs.20.00 lakhs.

4. We may clarify that any observation made by us in this appeal

shall not be taken to be our observation on the merits of the case

by the appellate authority while deciding the appeal on merits.

The appeal and the application are accordingly disposed of.

                                                    M.L.MEHTA
                                                     (JUDGE)



                                                     A.K. SIKRI
MARCH 29, 2011                                        (JUDGE)
'Dev'