2020 (1) TMI 36 - HC - Service Tax

Re-assessment - Validity of order passed u/s 73(1) of the Act, passed by the Assistant Commissioner - vires of Rule 3 of the Service Tax Rules, 1994 - primary contention of the learned counsel for the petitioner that the order in original passed under Section 73(1) of the Act, dated 17/03/2016 is the re-assessment order. The said approach of the petitioner is wholly misconceived. Section 72 deals with the Best judgment assessment - HELD THAT - The language employed in the provisions of Section 73 as it stood during the relevant period does not contemplate for an order of assessment, a condition precedent to invoke Section 73, as contended by the learned counsel for the petitioner. In other words, Best judgment assessment order passed under Section 72 of the Act, is not sine qua non for initiating proceedings under Section 73 of the Act. There was no assessment order as such, there could not be a notice for re-assessment inasmuch as the question of re-assessment would arise only when there has been assessment for the first instance. The proceedings under section 73(1) of the Act 1994 not being merely the re-assessment proceedings, the arguments of the learned counsel for the petitioner stands negated. The proceedings under section 73(1) of the Act 1994 not being merely the re-assessment proceedings, the arguments of the learned counsel for the petitioner stands negated. As regards the jurisdiction aspect is concerned, the Appellate Authority in the order impugned at Annexure-E dated 05/11/2018 has categorically given a finding in para-6 of the order - If the petitioner is aggrieved by the said findings of the Appellate Authority including the merits of the case, it is open to the petitioner to challenge the same before the Appellate Tribunal under Section 86 of the Act, 1994. Petition dismissed.

Summary

Issues:
Challenge to assessment order under Section 73 of the Finance Act, 1994; Failure to address arguments by the Appellate Authority; Jurisdiction of the Assistant Commissioner in passing the re-assessment order; Consideration of relevant legal judgments; Refund of tax, penalty, and interest collected by authorities; Applicability of Section 72 and Section 73 of the Act; Invocation of writ jurisdiction without exhausting statutory remedy.

Analysis:
The petitioner challenged the assessment order under Section 73 of the Finance Act, 1994, seeking a writ of certiorari to quash the impugned orders and a mandamus for refund of amounts collected as tax, penalty, and interest for the years 2013-2015. The Appellate Authority's failure to address the petitioner's arguments regarding jurisdiction and the legality of the re-assessment order under Section 73(1) was highlighted. The petitioner contended that the order in original lacked a Best judgment assessment under Section 72, rendering the re-assessment illegal and without jurisdiction.

The petitioner argued that the Assistant Commissioner's order under Section 73(1) was improper as detailed scrutiny by the Superintendent of Service Tax was not followed, contravening Service Tax Rules. Reference was made to the Standard Chartered Finance Ltd case to support the contention that the orders at issue should be set aside for not considering relevant legal judgments. The revenue's counsel defended the impugned orders, asserting the Assistant Commissioner's authority under Section 73(1) and the petitioner's failure to raise objections initially.

The Court analyzed Sections 72 and 73 of the Act, noting that a Best judgment assessment under Section 72 was not a prerequisite for invoking Section 73. Recovery of service tax not levied or paid, short-levied or short-paid, or erroneously refunded could be pursued under Section 73, subject to the period of limitation. The Court differentiated the present case from the Standard Chartered Finance Ltd judgment, emphasizing the distinct nature of the proceedings under Section 73(1) from mere re-assessment proceedings.

Regarding jurisdiction, the Court cited the Appellate Authority's finding that the petitioner's objection was belated, citing estoppel principles. The Court concluded that the writ petition could not be entertained on the grounds raised by the petitioner, dismissing it but granting liberty to approach the Appellate Tribunal within a specified timeframe. The Court emphasized the need to exhaust statutory remedies before invoking writ jurisdiction, directing the petitioner to pursue further recourse through the Appellate Tribunal under Section 86 of the Act, 1994.