2023 (9) TMI 458 - HC - Service Tax

Maintainability of petition - petitioner has filed voluminous records before this Court to substantiate that the impugned order that has been passed by the respondent is liable to be set aside - HELD THAT - There are several disputed questions of fact involved in the writ petition, which cannot be adjudicated in the writ proceedings. The petitioner has filed as many as 22 volumes of documents. These documents pertain to the accounts maintained by the petitioner vis-a-vis the final statements of the petitioner with the Bank. Therefore, this Writ Petition cannot be entertained. Ordinarily, as against the impugned order, the petitioner should have filed a statutory appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) within a stipulated period under Section 86(1) of the Finance Act, 1994. However, the period for filing the appeal has expired by the time when the present writ petition was filed on 07.06.2023 - the CESTAT has powers to condone the delay under Section 86(5) of the Finance Act, 1994. Therefore, this Writ Petition is dismissed by giving liberty to the petitioner to file a statutory appeal before the CESTAT within in a period of thirty days from the date of receipt of a copy of this order.

Summary

Issues Involved:
The judgment involves the computation of service tax payable by the Assessee based on income reflected in bank account statements, taxability and valuation of services provided on a joint development basis, incorrect payment of service tax on flats sold to specific service receivers, non-payment of service tax on other income, and non-payment of interest for delayed tax payment.

Computation of Service Tax Payable:
The respondent confirmed a total tax liability of Rs.2,78,45,879, including various components such as computation of service tax based on income reflected in bank account statements, taxability and valuation of services provided on a joint development basis, incorrect payment of service tax on specific flats, non-payment of service tax on other income, and non-payment of interest for delayed tax payment.

Petitioner's Submission and Reconciliation:
The petitioner submitted voluminous records to challenge the impugned order, claiming it should be set aside. The petitioner's chartered accountant provided a statement of reconciliation and filed ST-3 Returns for specific assessment years. However, subsequent details provided by the petitioner were deemed unsatisfactory by the respondent.

Legal Proceedings and Disputed Facts:
Following summons and requests for details, a Show Cause Notice was issued, leading to the impugned Order-in-Original. The petitioner's writ petition raised several disputed questions of fact, supported by 22 volumes of documents related to accounts and bank statements. The court determined that these disputed questions could not be resolved in writ proceedings.

Statutory Appeal and Dismissal:
The court noted that the petitioner should have filed a statutory appeal before the CESTAT within a stipulated period under the Finance Act, 1994. However, as the appeal period had lapsed, the court dismissed the writ petition but granted the petitioner liberty to file a statutory appeal before the CESTAT within thirty days. The petitioner was also required to pre-deposit 7.5% of the disputed tax amount along with the appeal for CESTAT's consideration.

Conclusion:
The writ petition was dismissed with liberty granted to file a statutory appeal before the CESTAT within a specified period and pre-deposit requirement. The CESTAT was instructed to entertain the appeal without considering the limitation aspect and to decide the appeal on its merits. No costs were awarded, and the connected Writ Miscellaneous Petition was closed.