2021 (12) TMI 1052 - HC - Service Tax

Time limitation - time barred assessment - no justification for passing the assessment order under the extended period of limitation - non-filing of return - challenge has been made on the ground that the assessment had become time barred; there was no justification for passing the assessment order under the extended period of limitation - HELD THAT - The above ground is not a sufficient ground for invoking our writ jurisdiction under Article 226 of the Constitution of India when there is a statutory alternative remedy in the form of provision for appeal i.e., Section 85 of the Finance Act, 1994. That being the position, we decline to entertain the writ petition and relegate the petitioner to the forum of appeal, as provided under the statute. To enable the petitioner to file the appeal, we direct that for a period of three weeks from today, no coercive action shall be taken against the petitioner. Petition disposed off.

Summary

Issues:
Challenge to legality and validity of order-in-original dated 30.07.2021 regarding service tax demand, interest, and penalty under Section 73(2) of the Finance Act, 1994 and Section 174(2) of the Central Goods and Services Tax Act, 2017.

Analysis:
The petitioner challenged the order-in-original passed by the Assistant Commissioner of Central Tax, confirming a service tax demand of ?40,74,805.00, along with interest and penalty. The challenge was based on the argument that the assessment had become time-barred, and there was no justification for passing the assessment order under the extended period of limitation. It was contended that non-filing of return should not be a ground for extending the limitation period.

Upon hearing the arguments from both sides and examining the materials on record, the Court held that the ground raised by the petitioner was not sufficient to invoke its writ jurisdiction under Article 226 of the Constitution of India. The Court noted that there was a statutory alternative remedy available in the form of an appeal under Section 85 of the Finance Act, 1994. Therefore, the Court declined to entertain the writ petition and directed the petitioner to approach the appellate forum as provided by the statute.

To facilitate the filing of the appeal, the Court ordered that no coercive action shall be taken against the petitioner for a period of three weeks. However, the Court cautioned that if no appeal was filed within the specified period, the stay order would automatically be vacated. The Court also mentioned that after the specified period, the Appellate Authority would have the discretion to decide on granting or denying a stay, without expressing any opinion on the merit of the case.

Finally, the Court disposed of the writ petition, stating that no costs were to be awarded. Any pending miscellaneous applications were to be closed as well, bringing the legal proceedings to a conclusion.