Order Date – 13 December 2022

Facts –

• The Petitioner, M/S. Vainguinim Valley Resort Unit Of Britto Amusements Pvt. Ltd is engaged in the business of Restaurants, Accommodation, Internet Cafe, Cab Operations, Health clubs and Fitness centers, Beauty parlors, Dry Cleaning Outdoor Catering, etc.
• The Petitioner (BAPL) entered into a joint venture agreement with Goa Golf Club Pvt. Ltd. (GGCPL). As per the agreement, BAPL was required to provide infrastructure and ancillary facilities for the business of M/s GGCPL for the purpose of establishing its business i.e. operating and running a casino at the premises of BAPL, Goa.
• A show-cause notice dated 03 February 2016 was issued alleging that service tax on the amount received from joint venture of BAPL and GGCPL for providing of the infrastructural facilities for the purpose of running a casino was not paid. Accordingly the demands were confirmed along with penalty under Section 77 of the Finance Act 1994.

Issue - 

• Whether service tax is payable on amount received from joint venture?

Order - 

• The Hon’ble High Court observed that the reasons disclosed by Respondent are unable to accept, in the impugned order for the simple reason that there is no reference to the contents of the reply filed by the Petitioner to the show-cause notice and the document attached to it thereby specifically disclosing that the joint venture between BAPL and GGCPL was cancelled with effect from 1 April 2013.
• Thus, there was no service provider or service receiver contract between the parties justifying the levy of service tax. The impugned order further failed to take into account the order passed by the Appellate Tribunal dated 5 March 2019 wherein a demand of the department for the earlier period from October 2007 to March 2013 was negated.
• It was observed that there is absolutely no mention in the entire order about the reply filed by the Petitioner to the show-cause notice or its contents.
• Hence the impugned order is quashed and set aside by remanding it to the said authority to decide it afresh by considering reply filed by the Petitioner to the show-cause notice, and documents attached to it and also by giving a personal hearing. The Rule is made absolute to this extent.