2016 (11) TMI 493 - HC - Service Tax

Challenge to the order confirming the demand of service tax - SCN notice issued in the name of property and not in the name of assessee - Renting of Immovable Property Service - jurisdiction of respondent to pass the order - Held that - the issue involved in the instant case revolves upon disputed and complicated questions of fact and the plea of jurisdiction raised by the petitioner essentially involves adjudication into facts and it is not purely a jurisdictional aspect as brought forward in several other cases including that of the decision in the case of Calcutta Discount Co. Ltd. vs. Income Tax Officer, Companies District I, Calcutta and another reported 1960 (11) TMI 8 - SUPREME Court . Therefore this is a fit case where the petitioner should be relegated to avail the appellate remedy and the writ petition cannot be entertained to adjudicate disputed questions of facts raised by the petitioner - writ petition not maintainable - Liberty is granted to the petitioner to file an appeal before the Commissioner (Appeals-I), Coimbatore and while entertaining the appeal and computing the period of limitation, the period during which this writ petition was pending i.e. from 26.08.2016 to till the date of receipt of the certified copy of this order shall stand excluded - petition dismissed - decided against petitioner.

Issues Involved:
1. Jurisdiction of the respondent to pass the impugned order.
2. Whether VSA Vaniga Valagam, a property, can be assessed under the Finance Act.
3. Classification of the co-owners as an Association of Persons (AOP).
4. Applicability of the extended period of limitation.
5. Maintainability of the writ petition without availing the appellate remedy.

Detailed Analysis:

1. Jurisdiction of the Respondent:
The petitioner argued that the respondent lacked jurisdiction to pass the impugned order, contending that the demand was issued in the name of a building, which cannot be an assessee under the Finance Act. The court noted that the plea of lack of jurisdiction was not based on the respondent's authority under the Finance Act but on the assertion that the property itself cannot be a service provider. The court found that the show cause notice was issued to both VSA Vaniga Valagam and the seven co-owners, thus rejecting the petitioner's contention.

2. Assessment of VSA Vaniga Valagam Under the Finance Act:
The petitioner claimed that the property, VSA Vaniga Valagam, cannot be made liable to pay tax under the Renting of Immovable Property Service as it is owned by seven co-owners. The court observed that the petitioner had previously admitted that the assessee is an AOP consisting of seven co-owners. The court held that the petitioner could not now change their stance and that the income received jointly was subject to assessment under the Finance Act.

3. Classification as Association of Persons (AOP):
The respondent argued that the seven co-owners acted as an AOP since they jointly leased the property and shared the rental income. The court noted that the petitioner had admitted in their reply that the assessee is an AOP. The court found that the respondent's classification of the co-owners as an AOP was valid and that the petitioner could not contest this classification after previously admitting it.

4. Applicability of Extended Period of Limitation:
The respondent claimed that the extended period of limitation was applicable due to suppression of turnover by the AOP. The court did not explicitly address this issue in detail but implied that the respondent's invocation of the extended period was justified based on the facts presented.

5. Maintainability of the Writ Petition:
The respondent raised a preliminary objection regarding the maintainability of the writ petition, arguing that the petitioner had not availed the appellate remedy available under the Act. The court agreed, stating that the petitioner should have filed an appeal before the Commissioner (Appeals-I), Coimbatore, and that the writ petition could not be entertained to adjudicate disputed questions of fact. The court dismissed the writ petition, granting liberty to the petitioner to file an appeal and excluding the period during which the writ petition was pending from the limitation period.

Conclusion:
The court dismissed the writ petition, holding that the petitioner should avail the appellate remedy. The court found that the respondent had jurisdiction to pass the impugned order, that the co-owners acted as an AOP, and that the petitioner could not contest the classification after previously admitting it. The court also implied that the extended period of limitation was applicable and that the writ petition was not maintainable without exhausting the appellate remedy.

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