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TMI BlogDELAY IN FILING WRIT PETITIONX X X X Extracts X X X X X X X X Extracts X X X X ..... DELAY IN FILING WRIT PETITION - By: - Mr. M. GOVINDARAJAN - Other Topics - Dated:- 24-11-2017 - - A writ petition may be filed for the enforcement of fundamental right enshrined under the Constitution of India. The writ petition may also be filed when there is no alternative remedy is available in any law. The writ petition is ordinarily not entertained by the High Courts and Supreme Court if there is an alternate way of remedy is available unless there is a case without jurisdiction or it violates the provisions of law or the principles of natural justice. There is no time limit for filing writ petition. However the same should be filed within a reasonable time. If there is a delay, the writ petitioner is to explain the reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in filing the writ petition. If there is a delay and laches in filing the writ petition, then the Court will not entertain the same. In Shoeline V. Commissioner of Service Tax 2017 (8) TMI 603 - SUPREME COURT OF INDIA the Revenue issued show cause notice to the petitioner on 23.08.2007 for nonpayment of service tax on commission paid to overseas agents under business auxiliary service. The assessee contested the said show cause notice by filing reply. The liability of payment service tax, on amounts being remitted to overseas agent, would not fall on the payment prior to June 16, 2005 in view of the inapplicability of Finance Act, 1994 . The objections raised by the assessee were rejected, the Joint Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the demand vide his order dated 27.02.2008. The assessee filed a writ petition against the said demand in March 2012, after a lapse of four years after the demand was confirmed. The High Court dismissed the writ petition and also writ appeal of the assessee. However the assessee did not challenge the original order before the Appellate Authority. The assessee contended before the Supreme Court that the High Court totally overlooked and ignored the explanation given which furnished sufficient cause for approaching the Court in March 2012. The Supreme Court observed that the commission was being paid for the outsourcing of business of export of shoe-uppers for soliciting orders by the overseas agent on behalf of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for securing export orders of shoe uppers. It is on these orders the appellant had paid the commission to the foreign party. The contention of the Revenue was that service tax was payable on the commission as the said activity would come within the sweep of business auxiliary service . The Supreme Court further observed that the demand of Joint Commissioner was not challenged immediately by filing statutory appeal which was available. Since the amount was not paid the Revenue threatened the appellant with coercive action stating that his bank accounts would be attached, the appellant started making payments and he paid the entire service tax in five installments in the year 2011 and one installment was paid on 17.09.2016. But he di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not pay the penalty and interest. The appellant stated before the Supreme Court that it was aware that there were numerous other litigations pending from 2007 onwards by various parties who were under genuine and the bona fide belief that they were not liable to pay the service tax. However the appellant themselves were not liable to file a statutory appeal before the Departmental Appellate Authorities, since the file had been misplaced due to a change of managerial set up in the organization as the partnership firm was in the process of dissolution and the concern was being converted into a sole proprietorship which took place on 24.01.2009. In other litigations it was held that service tax was not payable in the absence of appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate provision at the relevant time and it became payable only with effect from 18.04.2006 when section 66A was inserted by the Finance Act, as a charging section. The Ministry of Finance issued a circular which stated that the service tax liability on any taxable services provided by a non resident or a person located outside India to a recipient in India would arise with effect from 18.04.2006. This circular was issued by the Department after the Supreme Court had dismissed the special leave petition filed by the Department, challenging the orders of the Tribunal on applicability of service tax prior to 18.04.2006. The Revenue contended that the appellant filed the writ petition in March 2012 for the aforesaid reasons and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were genuine and provided due explanation for approaching the court after a lapse of four years. The case of appellant would not be covered as it would not constitute a pending dispute because of the reason that the case of the appellant stood resolved on 27.02.2008 when the Joint Commissioner had passed the orders which had attained finality in the absence of statutory appeal preferred by the appellant. The Supreme Court observed that no statutory appeal was filed by the appellant challenging the impugned order and he was also making payment towards service tax demanded by the Revenue without challenging the order. Now he wanted to take advantage of other litigation pending in respect of the same subject matter. When the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not challenged the demand and was merely sitting on the fence, watching the proceedings in other similar cases, the decision in those cases cannot furnish any cause of action to the appellant to file the writ petition. The Supreme Court analyzed the previous decisions of the Court. In State of Uttar Pradesh V. Arvind Kumar Srivastava 2014 (10) TMI 947 - SUPREME COURT OF INDIA the Supreme Court held that the normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India . The principle needs to be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in service matters more emphatically as the service jurisprudence evolved by the Supreme Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. But at the same time the Supreme Court held that this principle is subject to well recognized exception in the form of latches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucceeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated person be extended to them. They would be treated as fence-sitters and laches and delays, and /or the acquiescence, would be a valid ground to dismiss their claim. The Supreme Court further held that if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aches and delays or acquiescence. The Supreme Court in this case held that equities would be balanced by not insisting on payment of penalty and interest from the assessee. Thus when the appellant approached belatedly it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law. The High Court, to this extent, committed an error by not dealing with this aspect of the matter and dismissing the writ petition in its entirety. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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