TaxTMI 
TaxTMI 
2014 (5) TMI 1226
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....5 sq. ft. of super built up area, together with total 45 car parks were offered on rent to the respondents following several meetings. The terms and conditions for letting out the said space to the respondents by the first petitioner ultimately crystalised @ Rs. 42 per sq. ft. of the total super built up area of 45,605 sq. ft. After finalisation of the terms and conditions of the proposed lease, a deed of lease dated September 1, 2012 (hereafter the said deed) was executed by and between the petitioner and the respondents. One of the terms and conditions of the said deed provided as follows: 6. The lessor/lessors shall pay all rates, taxes, assessment, charges and other outgoings whatsoever of every description which under the statues are....
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....emissness of the respondents in paying the service tax, this writ petition dated February 7, 2014 has been presented before this Court praying for, inter alia, the following relief: In the circumstances, your petitioners most humbly pray Your Lordships for the following orders:- a) A writ or writs in the nature of Mandamus do issue commanding the respondents to forthwith make payment of the service tax component of the monthly rentals in respect of the 6th floor of Premises No. CBD-1, JL 23, AAII, Newtown, Rajarhat, measuring more or less about 45605 sq. ft. super built-up area together with total 45 car parks, 20 open slots and 25 covered slots; b) A writ or writs in the nature of Mandamus do issue commanding the respondents to forth....
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....c. if any will be paid by the M/s. Bengal Shrachi Housing Development Ltd (f). The electricity charges as per consumption will be paid by the Coast Guard to M/s. Bengal Shrachi Housing Development Ltd. (g) Other terms and conditions as per letter of offer. According to him, the respondents having agreed to bear service charge and the same being their liability in terms of the extant law (the Finance Act 1994), there could be no escape from the conclusion that they are to bear the same. 5. Unreported decisions of the Delhi High Court dated October 20, 2010 and the Allahabad High Court dated January 16, 2013 in the case of Pearey Lal Bhawan Association v. M/s. Satya Developers Pvt. Ltd. and M/s. Bhagwati Security Services (Regd.) v. Uni....
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....r cannot be allowed to escape its obligations in terms of the said deed and foist the liability on the respondents. 7. I have heard the learned advocates for the parties and perused the materials on record. 8. In view of the decisions of the Supreme Court in the case of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553 and in the case of Harbanslal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107, the point as to whether a writ petition impeaching contractual obligations despite availability of a forum for resolution of disputes and differences by arbitration would be maintainable, is no longer res integra. The facts surfacing from the writ petition do not require investigation into any d....
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....s true, that the contracts entered into between the parties in this case, spoke of the plaintiff lessor's liability to pay municipal, local and other taxes, in at least two places. The Court, however, is not unmindful of the circumstance that service tax is a species of levy which the parties clearly did not envision, while entering into their arrangement. It is not denied that leasing, and renting premises was included as "service" and made exigible to service tax, by an amendment; the rate of tax to be collected, is not denied. If the overall objective of the levy-as explained by the Supreme Court, were to be taken into consideration, it is the service which is taxed, and the levy is an indirect one, which necessarily means that the u....
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....ided, and thereafter to be deposited with government treasury within the prescribed time. 6. Thus essentially the statute is being imposing the tax upon the person to whom service is being provided, and the service provider is merely a collecting agency. 7. In that view of the matter, the writ petition is allowed. The respondent no. 2 is directed to make reimbursement of service tax to the petitioner without further delay. 11. I share the views of the Delhi High Court and the Allahabad High Court extracted supra. 12. Turning to the facts of the present case, it appears that clause 6 extracted supra delineated the respective obligations of the lessor and the lessees. The parties agreed that the rates and taxes primarily leviable upon t....