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TMI Blog2016 (11) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... I), Coimbatore and while entertaining the appeal and computing the period of limitation, the period during which this writ petition was pending i.e. from 26.08.2016 to till the date of receipt of the certified copy of this order shall stand excluded - petition dismissed - decided against petitioner. - W. P. No. 30142 of 2016 W. M. P. Nos. 26110 and 31737 of 2016 - - - Dated:- 2-11-2016 - The Hon'ble Mr. Justice T. S. Sivagnanam, J. For the Petitioner : Mr.R.Janakiraman For the Respondent : M/s.Hema Muralikrishnan ORDER The petitioner called as VSA Vaniga Valagam represented by its co-owner A.Rajendran has filed this writ petition challenging the order in original dated 29.04.2016 passed by the respondent confirming the demand in the show cause notice dated 06.04.2015 and directing recovery of service tax of ₹ 37,07,600/- along with other cess and charges under the category of Renting of Immovable Property Service under Section 73(2) of Chapter V of Finance Act, 1994 (hereinafter referred to as the Act ); ordering recovery of appropriate interest and imposing penalty. As against the impugned order, the petitioner has an appellate remedy of filing an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount Co. Ltd. vs. Income Tax Officer, Companies District I, Calcutta and another reported in 1961 Vol. 41 ITR 191. The learned counsel also referred to the Family Arrangement Deed dated 15.07.2005 entered into between co-owners of the property to demonstrate as to how the rental income has been shared among the co-owners, etc. 4. Mrs.Hema Muralikrishnan, learned Senior Standing Counsel appearing for the respondent raised a preliminary objection regarding the maintainability of the writ petition on the ground that the petitioner has not availed the appellate remedy available under the Act. Without prejudice to such submission, it is submitted that the petitioner had earlier filed a writ petition before this Court in W.P.No.748 of 2009 challenging the constitutional validity of the enactment and the present impugned proceedings have been issued after final orders were passed by the Hon'ble Division Bench of this Court on 20.06.2014 upholding the validity of Section 65(105)(zzzz) and after the order was received another notice was issued to the petitioner and proceedings have been finalized. With regard to the jurisdictional aspect, it is submitted that the contention raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o lease agreements, etc. Thus the service provided by the seven co-owners by renting of immovable property is an indivisible service in the name of VSA Vaniga Valagam which is a joint entity of seven co-owners. With regard to the position prior to July 2012 which do not contain the definition of person, it is submitted that the respondent rightly referred to the provisions of the General Clauses Act, 1897 and passed a detailed order and the interpretation given by the respondent is perfectly valid. Further with regard to the invocation of extended period of limitation, it is submitted that since there is suppression of turnover by the AOP, the extended period of limitation is clearly invocable. Therefore it is submitted that if the petitioner is aggrieved they should file an appeal before the Appellate Authority as provided under the Act. 7. In reply, the learned counsel for the petitioner submitted that the notice was sent only to the property VSA Vaniga Valagam and a copy of the notice has been marked to the co-owners and the petitioner had sent a reply. Even earlier, the petitioner when they filed a writ petition in W.P.No.748 of 2009 they contended that they are not an asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Immovable Property Service as the property is owned by seven co-owners and if at all the persons to be treated as service providers are the individual co-owners and if done so, they fall within the threshold limit and not liable to pay service tax. 10. This is the second time the petitioner is before this Court. Earlier this petitioner filed W.P.No.748 of 2009 wherein they have sought for a writ of Declaration to declare the provision of Clause (90a) of Section 65 and Sub-Clause (zzzz) to Clause 105 of Section 65 of the Finance Act inserted by Finance Act, 2005 with effect from 01.06.2007 as ultra vires and violative of Article 14, 19(1) and 265 of the Constitution of India. A Division Bench of this Court, to which I was a party, by a common order dated 20.06.2014 dismissed the writ petition. Even prior to the filing of writ petition, show cause notice was issued to the petitioner and the petitioner had submitted a reply, but before orders could be passed the constitutional validity of the provision was questioned by the petitioner before this Court and ultimately the writ petition was dismissed on 20.06.2014. During the pendency of the said writ petition, an order of stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the property tax have done under three assessments and all other factors have weighed in the minds of the respondent while passing the impugned order. Thus the question of jurisdiction raised by the petitioner is not one which impinges upon the authority of the respondent to issue show cause notice, rather to contend that the petitioner VSA Vaniga Valagam cannot be an assessee under the provisions of the Finance Act. As mentioned earlier the show cause notice was issued to VSA Vaniga Valagam and seven others and for the first time the petitioner describes themselves as VSA Vaniga Valagam represented by a co-owner. This was not the stand taken while submitting the reply dated 05.05.2015 and the additional written submission dated 14.03.2016. Therefore, the petitioner has sought to improve upon their submission by mentioning a different cause title than what was mentioned by them before the respondent as well as before this Court in the earlier writ petition. Thus the issue involved in the instant case revolves upon disputed and complicated questions of fact and the plea of jurisdiction raised by the petitioner essentially involves adjudication into facts and it is not purely a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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