2023 (4) TMI 1007 - HC - GST

Taxpayer's Challenge to Service Tax Assessment Rejected, Directed to Pursue Statutory Appeal Mechanisms

M/s S.S. Construction Versus Union Of India And Another

HC dismissed the writ petition challenging a service tax assessment order. The court held that statutory alternative remedies should be pursued, ... Maintainability of petition - statutory alternative remedy of preferring an appeal, not availed - (jurisdiction to) demand for service tax from U.P. Power Corporation - Chapter V of the Finance Act, 1994 is omitted - HELD THAT:- So far as issue with regard to raising of demand for service tax from U.P. Power Corporation is concerned this is a factual issue which can always be determined in appropriate proceedings instituted by the petitioner while challenging the assessment order. Routine issues with regard to the legality of the assessment order are not required to be entertained in excercise of extraordinary jurisdiction conferred upon this court under Article 226 of the Constitution of India by passing the statutory alternative remedy provided in the statute itself. So far as omission of Chapter V of the Finance Act, 1994 is concerned, the obligation created thereunder shall continue to be saved by virtue of Section 174(2)(c) of the GST Act, 2017. The petitioner therefore cannot challenge the imposition of service tax on the ground that Chapter V of the Finance Act, 1994 is omitted. The present writ petition directly against the order of assessment not entertained, so as to bypass the remedy of appeal contemplated in the Act - petition dismissed. Order of assessment dated 23.09.2022 challenged; maintainability contested on grounds that statutory alternative remedy (appeal) was not availed. Petitioner's contentions: service tax already charged and paid by U.P. Power Corporation for items included by department, and that by virtue of Section 173 of the Central Goods and Service Tax Act, 2017, 'Chapter-V of the Finance Act, 1994 having been omitted the proceedings for levying of service tax is without jurisdiction.' Respondent relied on reading Section 173 with Section 174, asserting obligations under the Finance Act, 1994 are preserved. Court held the dispute over levy on U.P. Power Corporation is a factual matter for appropriate proceedings and declined to exercise extraordinary jurisdiction under Article 226 to bypass the statutory remedy. Omission of Chapter V is 'saved by virtue of Section 174(2)(c) of the GST Act, 2017.' The court was 'not inclined to entertain the present writ petition directly against the order of assessment,' permitted filing of the statutory appeal within four weeks, and directed it be entertained without limitation objection; writ dismissed.