2023 (4) TMI 1007 - HC - GST

Maintainability of petition - statutory alternative remedy of preferring an appeal, not availed - (jurisdiction to) demand for service tax from U.P. Power Corporation - Chapter V of the Finance Act, 1994 is omitted - HELD THAT - So far as issue with regard to raising of demand for service tax from U.P. Power Corporation is concerned this is a factual issue which can always be determined in appropriate proceedings instituted by the petitioner while challenging the assessment order. Routine issues with regard to the legality of the assessment order are not required to be entertained in excercise of extraordinary jurisdiction conferred upon this court under Article 226 of the Constitution of India by passing the statutory alternative remedy provided in the statute itself. So far as omission of Chapter V of the Finance Act, 1994 is concerned, the obligation created thereunder shall continue to be saved by virtue of Section 174(2)(c) of the GST Act, 2017. The petitioner therefore cannot challenge the imposition of service tax on the ground that Chapter V of the Finance Act, 1994 is omitted. The present writ petition directly against the order of assessment not entertained, so as to bypass the remedy of appeal contemplated in the Act - petition dismissed.

Summary

Issues involved:
The issues involved in the judgment are the challenge to the order of assessment dated 23.09.2022, the maintainability of the writ petition due to the availability of statutory alternative remedy, and the grounds for challenging the assessment order.

Challenge to Order of Assessment:
The order of assessment dated 23.09.2022, passed by respondent no.2, was challenged in the writ petition. The petitioner argued that service tax had already been charged and paid by the U.P. Power Corporation for items included by the department for levying service tax on the petitioner. Additionally, the petitioner contended that the proceedings for levying service tax were without jurisdiction due to the omission of Chapter-V of the Finance Act, 1994 by virtue of Section 173 of the Central Goods and Service Tax, 2017. The petitioner relied on a Division Bench judgment to support the argument that a writ petition can be entertained directly against the order of assessment without resorting to the remedy of appeal.

Maintainability of Writ Petition:
An objection was raised regarding the maintainability of the writ petition on the grounds that the petitioner had not availed the statutory alternative remedy of preferring an appeal. The court noted this objection and scheduled a hearing for further discussion on this aspect. The respondent argued that Section 173 of the Central Goods and Service Tax, 2017, had to be read in conjunction with Section 174 to save the proceedings, and therefore, the writ court should not interfere in a writ petition challenging the order of assessment.

Grounds for Challenging Assessment Order:
The court considered the contentions of both parties and concluded that the issues regarding the demand for service tax from U.P. Power Corporation and the omission of Chapter-V of the Finance Act, 1994 were factual and legal issues that could be addressed in appropriate proceedings challenging the assessment order. The court emphasized that routine issues on the legality of the assessment order should be addressed through the statutory alternative remedy of appeal provided in the statute. It was held that the petitioner could not challenge the imposition of service tax based on the omission of Chapter V of the Finance Act, 1994. Consequently, the court dismissed the writ petition and permitted the petitioner to file a statutory appeal within four weeks without objections on the limitation.