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2024 (2) TMI 1087 - HC - Service TaxAttachment of property of the partnership firm - Recovery of Service post GST era - seeking direction to the 2nd respondent to provide a certified copy of the order confirming the tax demand - HELD THAT - as regards taxes which had not been recovered, it enables initiation of action for recovery thereof under Section 142 of the CGST Act. Therefore, it was open to the first and second respondents to initiate action under the CGST Act if tax dues had not been recovered under the provisions of the Finance Act 1994. Instead, the petitioner resorted to Section 142 of the Customs Act. Section 142(1) of the Customs Act - the impugned attachment order is quashed by leaving it open to the first and second respondents to initiate appropriate proceedings in accordance with the CGST Act for the recovery of service tax dues. The petitioner is permitted to present a statutory appeal before the appellate authority provided such appeal is presented within a maximum period of two weeks from the date of receipt of a copy of this order.
Issues Involved:
1. Validity of the impugned attachment order. 2. Service of the assessment order. 3. Preliminary objection regarding the entitlement of a partnership firm to file a writ petition. Summary: Preliminary Objection: The respondents argued that a partnership firm cannot file a writ petition on behalf of its partners, relying on judgments from the Allahabad High Court and the Supreme Court. However, the court overruled this objection, noting that under tax statutes, a partnership firm is considered a "person" and thus can file a writ petition as the aggrieved party. Validity of the Impugned Attachment Order: The court examined the attachment order issued under Section 142(1)(c)(ii) of the Customs Act, 1962. It was noted that the Finance Act, 1994, had been repealed and replaced by GST laws, which contain provisions for recovery of dues. The court found that the attachment order was unsustainable because Section 142(1) of the Customs Act applies only when a sum payable under the Customs Act remains unpaid. Consequently, the attachment order was quashed, leaving it open for the respondents to initiate appropriate proceedings under the CGST Act. Service of the Assessment Order: The petitioner claimed not to have received the assessment order and requested a certified copy multiple times. The court noted that the petitioner did not have a copy of the assessment order when the writ petition was filed and that the respondents failed to provide the requested certified copy. The court directed that the petitioner be allowed to present a statutory appeal against the assessment order within two weeks from the date of receipt of this order. Final Directions: 1. The impugned attachment order was quashed, allowing the respondents to initiate proceedings under the CGST Act. 2. The petitioner was permitted to present a statutory appeal within two weeks. 3. The appellate authority was directed to dispose of the appeal on merits without considering the question of limitation, provided the requisite pre-deposit was made. 4. The petitioner was instructed not to alienate, encumber, or dispose of the immovable asset subject to attachment without the appellate authority's leave. The writ petition was disposed of with no order as to costs.
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