2023 (2) TMI 733

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....ons 77 and 78 of the Finance Act, 1994. The demand is of Rs.39,02,38,017/-. The Petitioner has invoked writ jurisdiction of this Court in spite of the availability of the alternate remedy of filing an appeal on the ground that the Respondent has not considered a binding decision of the Tribunal in the Petitioner's own case and, therefore, interference in writ jurisdiction is warranted. We find merit in this contention and, consequently, the prayer for remand. That being the limited ambit of the matter, it is not necessary to detail the facts of the case. 2. Briefly stated, the Petitioner is a company engaged in the business of acquisition of user fee collection rights of toll roads. The Petitioner had entered into an agreement wit....

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....er submitted that the decision in the Petitioner's own case by the Tribunal dated 26 September 2017 has not been duly considered. It is submitted that though the judgment was binding on the Respondent, the Respondent has not considered the same and, therefore, the impugned order must be set aside, leaving it to the Revenue to take the proceeding further. The learned counsel for the Respondent submits that the entire issue as to the liability of the toll agency to pay service tax is pending before the Hon'ble Supreme Court as the Revenue has approached the Hon'ble Supreme Court against the decision of the Tribunal in the case of Ashoka Buildcon Ltd. v. Commissioner of Service Tax, Nashik 2017 (49) S.T.R. 404 (Tri.-Mumbai). 5. ....

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....collected as source u/s 206C of the Income Tax Act from the installments paid by the Respondents......" The Tribunal, in its decision dated 26 September 2017, in Petitioner's own case, had rendered a finding that the Petitioner cannot be considered as an agent of the NHAI. In the impugned decision, the Respondent has not dealt with the implications of this finding of the Tribunal. The Respondent- Commissioner had posed this question to himself in the order; however, thereafter, we do not find any declaration as to what is the implication of the earlier decision of the Tribunal and as to whether the finding of the status of the Petitioner would lose its meaning after the introduction of the new regime. The Commissioner has only referr....