2021 (10) TMI 62

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.... main relief(s): "I. Issue a writ, order or direction in the nature of certiorari quashing the Impugned Order dated 03.09.2021 passed by respondent no. 3; II. Issue a writ, order ore direction in the nature of prohibition restraining the Respondent Authorities from taking any action or proceedings against the petitioner in any manner consequential or otherwise based on the Impugned Order dated 03.09.2021; III. Issue a writ, order or a declaration that end-to-end ATM management service provided by the Petitioner to banks in the State of U.P. is liable to service tax; IV. Issue a writ, order or a direction to State of U.P., i.e. Respondent No. 1, to seek adjustment of Service Tax collected by Union of India, i.e. Respondent no. 4,....

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.... no. 9550 of 2020 and writ petition no. 26262 of 2019 dated 02.09.2020 and 17.02.2021 respectively copies of which have cumulatively been filed as annexure 9 to this petition. 5. Placing reliance on the aforesaid judgements Shri Mathur says that as a question of law is involved in the instant petition i.e. whether the petitioner is liable for payment of VAT or service tax, as such this question cannot be decided by the appellate authority if an appeal is to be filed against the assessment order dated 03.09.2021, as such this Court may entertain the petition and decide the said issue. 6. On the other hand Shri Sanjay Sarin has placed reliance on recent judgement of Hon'ble Apex Court passed in Civil Appeal No. 5121 of 2021 in re: The....

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....the petitioner has itself disclosed that the said order has been challenged on merits before the Full Bench of the learned Commercial Tax Tribunal Lucknow vide the appeal no. 2 of 2021 which is now listed for hearing. 9. Placing reliance on the aforesaid order passed under Section 59 of the 'Act 2008' Shri Sanjay Sarin contends that once the petitioner itself had raised the issue under Section 59 of the 'Act 2008' whereby petitioner has been held liable for VAT consequently now the petitioner cannot be allowed to resile and say that the impugned assessment order is wrong and thus the petitioner cannot be allowed to blow hot and cold in the same breath. 10. Heard learned learned counsel for parties and perused the record.....

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....s tax it is not an issue which could be raised and decided by the assessing authorities. However in the present case, as already indicated above the petitioner itself had raised the issue by filing application under Section 59 of the 'Act 2008' in which the petitioner has been determined as liable for paying VAT and thus now the petitioner cannot be allowed to resile and say that the impugned assessment is bad. 14. Likewise the judgement of Hon'ble Apex Court in the Case of Bharti Airtel Ltd (Supra) would also not be applicable. 15. So far as the judgement of Paradip Port Trust (Supra) is concerned again there cannot be any quarrel to the proposition of law laid down by the Hon'ble Apex Court yet in the instant case cons....