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.
Resultantly, the Court
(i) declares Rule 5A(2) as amended in terms of Notification No. 23/2014- Service Tax dated 5th December 2014 of the Central Government, to the extent that it authorises the officers of the Service Tax Department, the audit party deputed by a Commissioner or the CAG to seek production of the documents mentioned therein on demand is ultra vires the FA and, therefore, strikes it down to that extent;
(ii) holds that the expression ‗verify‘ in Section 94 (2) (k) of the FA cannot be construed as audit of the accounts of an Assessee and, therefore, Rule 5A(2) cannot be sustained with reference to Section 94(2)(k) of the FA
(iii) 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.
(iv) quashes the letter dated 30th April 2015 issued by the Commissioner of Service Tax, Audit-1, New Delhi addressed to the Petitioner as being unsustainable in law.
(v) 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.
HIGH COURT OF DELHI
Mega Cabs (P.) Ltd.
Union of India
W.P. (C) NO. 5192 & CM NO. 9417 OF 2015
JUNE 3, 2016
J.K. Mittal and Rajveer Singh, Advocates for the Petitioner. Mrs. Sonia Sharma, Ms. Neha Chugh, Ms. Jyoti Dutt Sharma and Ms. Nimisha Gupta Advs. for the Respondent.