9911796707
TMI Blog2016 (7) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... aid value added tax which would not automatically mean that service tax, if otherwise payable, cannot be recovered. Whether the petitioner has paid such tax voluntarily or upon coercion of the department are the issues which can be gone into in statutory appeals, if so filed. - In the result, petition is not entertained leaving it open for the petitioner to pursue statutory remedy. - SPECIAL CIVIL APPLICATION NO. 10560 of 2016 - - - Dated:- 13-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITONER : MR ANAND NAINAWATI, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged order-in-original dated 20.01.2016 passed by the Principal Commissioner of Service Tax, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the Commercial Tax authorities have no jurisdiction to levy service tax and that, therefore, it would be open for the petitioner to approach the High Court directly in a writ petition in order to press the question of very jurisdiction of the authority. He lastly contended that, the important question of interpretation of constitutional provisions is involved in the petition and therefore also, the writ petition should be entertained ignoring availability of alternative remedy. In this context, counsel submitted that the petitioner has created a lease in a movable property and the title in the property never vests in the lesee. This important aspect of the matter was totally lost sight by the Principal Commissioner while passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of natural justice, the proposition that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available or statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. We may reproduce the relevant portion of this judgement: 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers to the writ petition before the Supreme Court having become infructuous according to the respondents. The observations made in this paragraph, therefore, would be of no application. Likewise, in para 32, the Supreme Court was persuaded to allow the petitioner to approach directly in a writ petition under Article 32 of the Constitution on the ground that the petitioner raised questions relating to the competence of the States to levy sales tax on telecommunication service which was an issue which could not have been raised and decided by the Assessing authorities. This is not the scenario in the present case. Merely because the petitioner argues that not service tax but value added tax would be leviable since the title in the property d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t view was reiterated in Laxmanappa s case(1). But it has been held that a threat by the State to realize without authority of law tax from a citizen by using coercive machinery of an impugned Act is an infringement of the fundamental right guaranteed to him under Art. 19(1)(g) and gives to the aggrieved citizen a right to seek relief by a petition under the Constitution (see Himmatlal Harilal Mehta v. The State of Madhya Pradesh and others (3), The Bengal Immunity Company Ltd. v. The State of Bihar and others (4) and The, State of Bombay v. The United Motors (India) Ltd. and others (5). In these cases, in appeals from orders passed by the High Courts in petitions under Art. 226, this Court held that an attempt to levy tax under a statute w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
