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TMI Blog2020 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - WRIT PETITION No.52871/2018 (T – RES) - - - Dated:- 10-12-2019 - MRS. S. SUJATHA J. PETITIONER (BY SRI SHANTHAVEERANNA K. ABBIGERI, ADV.) RESPONDENTS (BY SRI JEEVAN J. NEERALGI, ADV.) O R D E R The petitioner has sought for the following reliefs; (a) for issue of writ of certiorari or any order in the nature of writ of certiorari quashing the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, refrained to interfere with the order of the learned single Judge. Accordingly, writ appeals came to be dismissed vide order dated 12/03/2018, permitting the petitioner to file an appeal within thirty days and directed the Appellate Authority to consider the case on merits ignoring the question of limitation, if such an appeal is preferred within a period of thirty days. Pursuant to which, the petitioner has preferred an appeal before the Appellate Authority and the same came to be dismissed. Hence, the present writ petition. 3. Learned counsel Sri. Shanthaveeranna, K, appearing for the petitioner would submit that the Appellate Authority has failed to address the arguments advanced by the learned counsel for the petitioner inasmuch as the jurisdiction of the authority in passing the re-assessment order under Section 73 of the Service Tax (Chapter-V of Finance Act, 1994.) Learned counsel submitted that the order in original dated 17/03/2016 does not bear any caption. No Best judgment assessment was passed under Section 72 of the Finance Act, 1994( Act for short). That being the position, passing an order of re-assessment under Section 73(1) of the Finance Act, 1994 ( A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d approach of the petitioner is wholly misconceived. Section 72 deals with the Best judgment assessment. The provisions of Sections 72 and 73 during the relevant period reads thus: 72. Best judgment assessment If any person, liable to pay service tax (a) fails to furnish the return under Section 70; (b) Having made a return, fails to assess the tax in accordance with the Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment] 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent facts of the case. The said judgment was rendered in the context of the returns filed by the assessee under the Interest Tax Act, 1974 where no assessment order was passed. Much after the last date of the assessment year, the Assessing Officer has sought to re-open the assessment by issuing notice under Section 10 of the Act, 1974 and proceeded to re-assess the interest chargeable under the Act. The Commissioner (Appeals) had set aside the re-assessment order and this was upheld by the Appellate Tribunal and the High Court had reversed the said order. On further appeal before the Hon ble Apex Court, it was held that 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. 11. 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 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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