2015 (11) TMI 842 - HC - Service Tax

Condonation of delay - Non deposit of service tax collected - Delay in depositing due to medical ailment of assessee - whether the case projected by the petitioner with reference to the merit order, is liable to be entertained by this Court when the statutory period for filing the appeal is already over - Held that - considering the persuasive submissions made by the learned counsel for the petitioner, this Court finds that an opportunity could be given to the petitioner to wipe of the liability in a phased manner, particularly in view of the physical ailments projected from the part of the petitioner with reference to Ext.P7 Medical Certificate and such other reasons. Considering the extent of liability to be cleared, after the amounts appropriated by way of Ext.P5, the outstanding liability shall be cleared by way of six equal monthly instalments, the first of which shall be effected on or before the 15th of December, 2014, followed by similar installments, to be effected on or before the 15th of the succeeding months. Subject to this, the recovery proceedings shall be kept in abeyance, for the time being. - Decided conditionally in favour of assessee.

Issues:
1. Ownership of building and rent collection
2. Liability to pay service tax under the Finance Act
3. Challenge to the order demanding service tax
4. Extension of the period of limitation for filing an appeal
5. Applicability of Section 5 of the Limitation Act
6. Jurisdiction of the High Court to entertain the case

Ownership of Building and Rent Collection:
The petitioner, the owner of four floors of a building, faced a service tax liability issue related to rent collection. The basement and ground floor belonged to the petitioner's brother. The petitioner received a show cause notice for not satisfying the service tax payable on the rent collected. Despite submitting a reply, the authorities finalized the proceedings and notified the petitioner's bank to appropriate a sum from the petitioner's account.

Liability to Pay Service Tax under the Finance Act:
The petitioner, suffering from back pain, argued that the order against him was passed mechanically without consideration of facts or relevant laws. The respondents contended that the petitioner collected service tax but failed to remit it. The petitioner expressed willingness to pay the principal amount but sought waiver of penalty and interest.

Challenge to the Order Demanding Service Tax:
The main issue was whether the High Court could entertain the petitioner's challenge to the order (Ext.P3) after the statutory period for filing an appeal had lapsed. The Court referred to a Supreme Court case and a previous High Court decision, emphasizing that remedies barred by limitation cannot be entertained through writ jurisdiction.

Extension of the Period of Limitation for Filing an Appeal:
The Court cited legal precedents to clarify that the statutory period for filing an appeal cannot be extended beyond the prescribed limit, even under Article 226 of the Constitution. The petitioner's plea for condonation of delay was not accepted based on established legal principles.

Applicability of Section 5 of the Limitation Act:
The Court highlighted that Section 5 of the Limitation Act, which allows for condonation of delay, does not apply to cases where the statutory period of limitation has expired. The judgment underscored the importance of adhering to statutory timelines for filing appeals.

Jurisdiction of the High Court to Entertain the Case:
Ultimately, the Court dismissed the writ petition due to the jurisdictional bar created by the expired statutory limitation period for filing an appeal. However, considering the petitioner's physical ailments and other reasons, the Court allowed the petitioner to clear the outstanding liability in monthly installments to provide relief, with a warning of immediate recovery in case of default.

This detailed analysis of the judgment covers the various issues involved in the case, including ownership, service tax liability, challenges to orders, limitation periods, and the High Court's jurisdiction to entertain the matter.

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