2014 (5) TMI 1021 - HC - Service Tax

Maintainability of writ petition - Assessee being Local Authority contended that it is not able to recover the amount from the parties - Service Tax on Bus stand fee, Advertisement tax, and fee collected on letting out of immovable property - Held that - it is clear that the Bench specifically observed that the case of a person who did not choose to avail the statutory remedy within the specified time, is never seated on a better position than a person who approached this Court directly by filing a writ petition instead of availing a statutory remedy before expiry of the time and driven out relegating to avail the statutory remedy declining interference under Article 226. Undisputedly, the petitioner was simply sleeping over the issue. Whether the petitioner has approached this Court at least within reasonable time , after expiry of the statutory period for filing the appeal - Held that - even if it is presumed that, no statutory remedy is available, could the matter be agitated before this Court at this distance of time; is the point to be considered. Obviously, the impugned orders (Exts.P3 and P4) are dated 24.05.2012 and 23.08.2012 respectively, whereas the writ petition has been filed only about 1 years after passing the said orders. This being the position, it cannot but be held, that the petitioner has not approached this Court within a reasonable time, so as to call for interference by this Court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. - Decided against assessee.

Issues Involved:
1. Liability for Service Tax on Renting of Immovable Property
2. Liability for Service Tax on Collection of Bus Stand Fee
3. Liability for Service Tax on Collection of Advertisement Tax
4. Maintainability of the Writ Petition
5. Availability of Alternate Remedy
6. Timeliness of the Petition

Detailed Analysis:

1. Liability for Service Tax on Renting of Immovable Property:
The petitioner, a Local Authority, challenged the orders (Exts.P3 and P4) holding them liable for Service Tax under the head of Renting of Immovable Property. The court noted that the petitioner had registered as a service provider under this category from 03.11.2008 and had been paying Service Tax from that date. However, the petitioner had not paid Service Tax for the period from June 2007 to October 2008, leading to the issuance of Ext.P1 show-cause notice. The petitioner's argument that they could not recover the differential tax from the parties concerned was not accepted, and the court found the petitioner liable for the unpaid Service Tax for the specified period.

2. Liability for Service Tax on Collection of Bus Stand Fee:
The petitioner argued that the collection of Bus Stand Fee was part of their statutory obligations and should not attract Service Tax. The court, however, classified this service under Business Support Services and confirmed the demand for unpaid Service Tax and penalties. The court did not find merit in the petitioner's argument that the fee collection was a statutory function exempt from Service Tax.

3. Liability for Service Tax on Collection of Advertisement Tax:
The petitioner also contested the liability for Service Tax on the collection of Advertisement Tax. The court classified this service under the Sale of Space or Time for Advertisement Services and confirmed the demand for unpaid Service Tax and penalties. The court did not accept the petitioner's contention that this activity was outside the purview of the Service Tax net.

4. Maintainability of the Writ Petition:
The respondents raised the issue of the maintainability of the writ petition, arguing that the petitioner had an effective alternate remedy by way of an appeal under Section 85 of the Finance Act, 1994, which they did not avail within the prescribed time. The court referred to the law declared by the Apex Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Amchong Tea Estate v. Union of India, which held that once the statutory period to file an appeal is over, the party cannot resurrect the cause by invoking the discretionary remedy under Article 226 of the Constitution of India. The court found the writ petition not maintainable as the petitioner had not availed the alternate remedy within the stipulated time.

5. Availability of Alternate Remedy:
The court emphasized that the petitioner had a statutory remedy under Section 85 of the Finance Act, 1994, which they failed to utilize within the prescribed period. The court reiterated that invoking the extraordinary jurisdiction under Article 226 of the Constitution of India would amount to resurrecting a cause of action that has expired, which is not permissible.

6. Timeliness of the Petition:
The court also considered whether the petitioner approached the court within a reasonable time after the expiry of the statutory period for filing an appeal. The impugned orders (Exts.P3 and P4) were dated 24.05.2012 and 23.08.2012, respectively, while the writ petition was filed about 1 1/2 years later. The court held that the petitioner did not approach the court within a reasonable time, and thus, interference by the court was not warranted.

Conclusion:
The court dismissed the writ petition, finding no merit or bonafides in the petitioner's arguments. The petitioner was held liable for the unpaid Service Tax under the heads of Renting of Immovable Property, Collection of Bus Stand Fee, and Collection of Advertisement Tax. The court emphasized the availability of an alternate remedy and the untimeliness of the petition as key reasons for declining interference.

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