AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 19
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Section 77(1) of the Finance Act, 1994, (iv) penalty of Rs. 10,000/- under Section 77(2) of the Finance Act, 1994 and (v) penalty of Rs. 2,17,50,747/- under Section 78 of the Finance Act, 1994. 3. The Learned Counsel for the respondents had raised preliminary issue on the point of maintainability by submitting that alternative and efficacious remedy is available to the petitioner by filing an appeal before the appellate authority. It was submitted that the departmental authorities had issued a demand-cum- show cause notice dated 23-4-2021 to the petitioner, wherein the respondent had provided all necessary particulars including the data shared by the CBDT. It was also mentioned that the petitioner had not filed ST-3 return for the financial year 2015-16 and had not paid service tax on the receipts against taxable service. The said notice also contained (i) computation of service tax liability, (ii) details of contravention of provisions of the Finance Act, 1994 and rules framed thereunder, (iii) invoking of extended period of limitation, (iv) penal provisions, and (v) break-up of nature of demand. However, the petitioner had provided only a three page reply dated 17-2-2022, wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e releasing payment, which is reflected in Form 26AS. It was submitted that the contract works for construction of bailey bridges qualify as "works contract" and that on such works contract, the incidence of service tax is exempted vide Mega Exemption Notification No. 25/2012-S.T., dated 20-6-2012. It was accordingly, submitted that the petitioner had not taken service tax registration and also did not pay service tax on the payment received for service portion. It was submitted that in respect of the goods component, the concerned authorities have deducted VAT, as applicable. It was also submitted that existence of alternative remedy is always not a ground for the writ Court to relegate the parties to avail such remedy. In support of his submissions, the following cases have been relied upon, viz., (i) Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority & Ors., 2023 SCC OnLine 95 = 2023 (384) E.L.T. 8 (S.C.) = (2023) 3 Centax 49 (S.C.), (ii) Magadh Sugar (supra), (iii) Assistant Commissioner of State Tax v. Commercial Steel Ltd., 2021 (52) G.S.T.L. 385 (S.C.) = [2021] 130 taxmann.com 180 (SC)/88 GST 799 (SC), (iv) M.P. State Agro Industries Development Corp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Notification No. 25/2012-S.T., dated 20-6-2012. If the said contention is true, then perhaps the petitioner can make out a case that the State cannot enrich itself by claiming service tax on service component of contractual receipts, which are otherwise exempt from the incidence of service tax. 13. Unfortunately, the materials available in this writ petition is insufficient for the Court to prima facie satisfy itself that the petitioner had produced the proof before the respondent No. 2 that all receipts for which TDS is shown to have been deducted as per Form 26AS was against contractual dues received from Engineering Projects (India) Ltd., in respect of construction works undertaken for construction of 10 Nos. of bailey bridges and that service component is exempt from incidence of service tax. 14. It would be relevant to refer to the decision of the Supreme Court of India in the case of The State of Maharashtra & Ors. v. Greatship (India) Ltd., AIR 2022 SC 4408 : (2022) Supreme (SC) 948 : 2022 (382) E.L.T. 3 (S.C.) : [2022] 142 taxmann.com 417 (SC), wherein it has been observed and held as under :- 6. We have heard the Learned Counsel for the respective parties at....
X X X X Extracts X X X X
X X X X Extracts X X X X
....njab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under section 19 of the DRT Act and observed: (SCC p. 570, paras 5-6) "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceeding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions. 9. In view of the above and in the facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner-assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute. (Emphasis supplied by us) 10. Under the circumstances, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The writ petition filed before the High Court challenging the assessment order and consequential notice of demand of tax is hereby dismissed. The respondent-assessee is relegated to avail the statutory remedy of appeal and other remedies available under the MVAT Act and CST Act. It is directed that if such a remedy is availed within a period of four weeks from tod....