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TMI Blog2024 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is reflected in Form 26AS are entitled for exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to this case. The direction to relegate a taxpayer to avail statutory remedy, which is more efficacious is the principle of self-restrain adopted by the constitutional Courts. Therefore, as alternative and efficacious remedy is available to the petitioner, this Court is not inclined to entertain this writ petition and therefore, this writ petition challenging the legality of the impugned order-in-original No. 30/Pr.Commr./ST/GHY/2021-22, dated 14-3-2022 stands dismissed at the motion stage without issuance of notice upon the respondents. Petition dismissed. - KALYAN RAI SURANA, J. Shri A. Jain, Advocate, for the Petitioner. Shri S.C. Keyal, Standing Counsel, for the Respondent. ORDER Heard Mr. A. Jain, Learned Counsel for the petitioner and Mr. S.C. Keyal, Learned Standing Counsel for the CGST Central Excise Commissionerate, appearing for all the respondents. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of the demand-cum-show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to disclose those relevant facts and then claim exemption from service tax liability. Thus, it is submitted that the petitioner has not been able to make out a case that the demand-cum-show cause notice dated 23-4-2021 or the impugned order-in-original dated 14-3-2022 was vitiated by any reason whatsoever. In support of his submissions, the Learned Standing Counsel for the respondents has placed reliance on the case of Magadh Sugar Energy Ltd. v. State of Bihar Ors., (2021) Supreme (SC) 517 (Para-19) : 2021 SCC OnLine SC 801. 5. Per contra, the Learned Counsel for the petitioner, while opposing the preliminary issue of maintainability, has submitted that in this case, the petitioner had provided construction service to Engineering Projects (India) Ltd. for construction of 5 (five) numbers of bailey bridges, which were exempted from service tax liability. In this regard, it was submitted that the said contention was negated on the ground that supporting documents such as bills, bank statement or any other document to substantiate the same was not provided. 6. However, in this regard, the Learned Counsel for the petitioner had produced a copy of the letter No. 11013/37/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Central Goods and Services Tax Act, 2017. The petitioner claims that his receipts were from Engineering Projects (India) Ltd., in respect of construction works undertaken for construction of 10 Nos. of bailey bridges and the petitioner claims that the service component of those receipts do not fall into the taxable category service. 9. Admittedly, the petitioner had not filed his service tax return and also did not disclose his gross contractual dues receipt or disclosed service tax component which is exempt from the incidence of service tax. 10. The Learned Standing Counsel for the respondents has demonstrated that on receipt of notices dated 8-9-2020 and reminder dated 16-9-2020, referred to in the demand-cum-show cause notice dated 23-4-2021, the petitioner had not submitted any reply and did not produce any relevant documents. 11. The Learned Standing Counsel for the respondents has also shown that after receipt of demand-cum-show cause notice dated 23-4-2021, the petitioner had only produced the following, viz., (1) adjournment of hearing, (2) written submission, (3) MCA Master data and PAN of Director, (4) 26AS, (5) Work order, (6) Notification No. 25/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 in which this Court had an occasion to consider the entertain ability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 53, it was observed and held as under : 49. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 were echoed in CCE v. Dunlop India Ltd., (1985) 1 SCC 260 in the following words: (SCC p. 264, para 3) 3. ... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 52. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under : (SCC pp. 175-176) 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant s Counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum. 7. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies. 8. Now so far as the reliance placed upon the decisions of this Court by the Learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Learned Counsel for the petitioner is not found to help the petitioner. Hence, the Court finds no reason to burden this order with the discussion on the same because reliance has been placed on the case of Greatship (India) Ltd. (supra). 16. The Court is of the considered opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled for exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to this case. 17. The direction to relegate a taxpayer to avail statutory remedy, which is more efficacious is the principle of self-restrain adopted by the constitutional Courts. Therefore, as alternative and efficacious remedy is available to the petitioner, this Court is not inclined to entertain this writ petition and therefore, this writ petition challenging the legality of the impugned order-in-original No. 30/Pr.Commr./ST/GHY/2021-22, dated 14-3-2022 stands dismissed at the motion stage without issuance of notice upon the respondents. 18. It is provided that if the petitioner is advised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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