2016 (10) TMI 835 - HC - Service Tax

Challenge to the SCN - maintainability of writ petition - charges/fees received for and after securitization of future receivables - Held that - the show cause notice cannot be interdicted at this stage of the matter on the grounds canvassed by the petitioner. This is so because the grounds raised are all pure questions of fact and the impugned show cause notice having been issued under a Taxation Statute, as held by the Division Bench in the case of Nivaram Pharma Pvt. Ltd. Vs. The Customs, Excise and Gold Control Appellate Tribunal 2005 (3) TMI 160 - MADRAS HIGH COURT following various decisions of the Supreme Court that the Court, exercising jurisdiction under Article 226 of The Constitution, should not interdict proceedings, the party should be directed to avail hierarchy of remedies available under the statute - petition not maintainable - petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to show cause notice for alleged non-payment of service tax on charges/fees received for securitization of future receivables.

Analysis:
The petitioner challenged a show cause notice dated 9.6.2016 alleging non-payment of service tax on charges/fees for securitization of future receivables. The petitioner argued against the invocation of the extended period of limitation, claiming high ethical standards in accounting. Reference was made to a letter from the respondent Department in 2010 stating no service tax is payable. Additionally, a previous show cause notice from 2010 was mentioned, which led to an appeal before the Customs, Excise and Service Tax Appellate Tribunal. The petitioner contended that the impugned notice was unwarranted, citing a 2012 manual on taxation of services and asserting regular remittance of service tax. The nature of the petitioner's transaction was characterized as a sale of property with full rights transferred to the assignee, highlighting alleged harassment and singling out of the petitioner among similar institutions.

The Court emphasized that interference at the show cause notice stage is warranted only if it is issued by an incompetent authority or contravenes established legal principles. The petitioner's claims of harassment, absence of suppression of facts, and unjustified extension of limitation period were deemed factual issues requiring adjudication. The respondent's counsel pointed to specific paragraphs in the notice to demonstrate factual complexities for the Authority's consideration. The Court held that as the issues were factual and the notice was issued under a Taxation Statute, the petitioner should exhaust statutory remedies rather than seeking intervention under Article 226 of the Constitution.

Consequently, the Court dismissed the writ petition as not maintainable, without costs. The decision was clarified to have no bearing on the petitioner's rights during the adjudication of the show cause notice, emphasizing the limited scope of the findings regarding the maintainability of the petition.