2014 (5) TMI 262 - HC - Service Tax

Extension of stay order - automatically vacation of stay order after one year - recovery of dues - Held that - it is the settled principles of law and which is consistent and recognized that where a case is not considered because of multiplicity of business of the Court the party ought not to be prejudiced by that delay and when an act of the Court can prejudice no man, ditto would be for an omission in keeping with the aforesaid principles that if the matter has not been taken up for consideration on a given date at least the litigant cannot be left to suffer for suchreason over which he has no control. Knowing it fully well that application is coming up before the Tribunal on 23.1.2014 such hasty steps by service of notice u/S.87(b) of the Finance Act, 1944 on 21.1.2014 freezing the bank account of the petitioner pursuant to notice dt.3.1.2014 and to recover the amount by debiting the petitioner s bank account on 22.1.2014 i.e. a day prior to the date i.e.23.1.2014 on which date the application for extension was coming up before the Tribunal cannot be appreciatedand ittantamount to overreaching the process of law which cannot be approved by this Court. The notice issued u/S.87(b) of the Finance Act, 1944 dt.21.1.2014 and further action debiting the petitioner s Bank account dt.22.1.2014 are hereby quashed and set aside and the respondents are directed to refund the amount which was debited on 22.1.2014 from the petitioner s bank account within two weeks. - Decided in favor of assessee.

Summary

Issues Involved:
1. Validity of attachment proceedings and notice dated 21.1.2014.
2. Justification of the recovery action by debiting the petitioner's bank account on 22.1.2014.
3. Entitlement to refund of the amount debited from the petitioner's bank account.

Issue-wise Detailed Analysis:

1. Validity of attachment proceedings and notice dated 21.1.2014:
The petitioner, a proprietorship firm providing maintenance services, was served a show cause notice on 18.10.2010 for failing to pay service tax from 16.6.2005 to 31.3.2010, contravening Sections 67, 68, 69, 70 of Chapter V of the Finance Act, 1994, and Rules 4, 5, 6, 7 of the Service Tax Rules, 1994. The adjudicating authority confirmed the demand of Rs. 83,51,306/- under Section 73(1) of the Finance Act, 1994, along with interest and penalties under Sections 75, 76, and 78 of the Act. The petitioner appealed to the CESTAT, which granted an interim stay and waiver of pre-deposit on 20.9.2012, subject to depositing 15% of the service tax demand. After the initial six-month stay expired, the department issued a notice on 3.10.2013, leading to the attachment of the petitioner's bank account on 21.1.2014. The petitioner filed for an extension of the stay on 30.10.2013, which was granted on 23.1.2014. The court held that the stay order extended by the Tribunal on 23.1.2014 rendered the attachment proceedings and notice dated 21.1.2014 invalid.

2. Justification of the recovery action by debiting the petitioner's bank account on 22.1.2014:
The department debited the petitioner's bank account on 22.1.2014, a day before the Tribunal extended the stay order. The court noted that the petitioner had complied with the Tribunal's order by depositing 15% of the tax within the stipulated period. It was presumed that the department was aware of the pending application for extension of the stay. The court found that the department's action of debiting the bank account on 22.1.2014, knowing that the stay extension application was pending, amounted to overreaching the process of law. The court emphasized that the stay order remained operative by fiction of law during the intervening period, rendering the recovery action unjustified.

3. Entitlement to refund of the amount debited from the petitioner's bank account:
The court held that after the Tribunal extended the stay order on 23.1.2014, the proceedings initiated by the department, including the attachment of the bank account, became nonest and inoperative. The court found substance in the petitioner's submission that the department was obligated to refund the amount debited on 22.1.2014. The court quashed the notice issued under Section 87(b) of the Finance Act, 1944, dated 21.1.2014, and the subsequent action of debiting the petitioner's bank account on 22.1.2014. The respondents were directed to refund the debited amount within two weeks.

Conclusion:
The writ petition was allowed, quashing the notice dated 21.1.2014 and the recovery action on 22.1.2014. The court directed the respondents to refund the debited amount within two weeks, emphasizing that the petitioner should not suffer due to procedural delays beyond their control. The Tribunal was urged to prioritize and expedite the pending appeal.