TaxTMI 
TaxTMI 
2025 (12) TMI 370
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....4 has been imposed on the petitioner and also imposed a penalty of Rs. 10,000/- (Rupees Ten Thousand) and Rs. 72,33,010/- (Rupees Seventy-Two Lakh Thirty-Three Thousand Ten) in terms of Section 78(1) of the Finance Act, 1994, thereby, ordered the appropriation of service tax amount of Rs. 73,20,352/- (Rupees Seventy-Three Lakh Twenty Thousand Three Hundred Fifty-Two) and interest amount of Rs. 6,85,455/- (Rupees Six Lakh Eighty-Five Thousand Four Hundred Fifty-Five). 3. The petitioner, M/s Hotel Gateway Grandeur is a company, which is a registered dealer under the Goods & Services Tax Act, 2017, the Finance Act, 1994 as well as the Assam Value Added Tax Act, 2003. The petitioner is engaged in the hotel business, having the Service Tax Registration No. AADC55816H SD001 and claims to have been regularly filing its returns and has never been considered a defaulter in any year. The petitioner filed its return for the period 2016-17 under Service Tax and paid the tax amount of Rs. 73,20,352/- (Rupees Seventy-Three Lakh Twenty Thousand Three Hundred Fifty-Two) along with interest amounting to Rs. 6,78,455/- (Rupees Six Lakh Seventy-Eight Thousand Four Hundred Fifty-Five). 4. A Dema....
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.... entire tax was paid before the issuance of the Show Cause Notice, no penalty can be imposed as per Section 73(3) of the Finance Act, 1994. 7. Ms. N. Hawelia, learned counsel for the petitioner, referring to the gross receipts and service tax liability for the year 2016-17, submits that the petitioner paid an amount of Rs. 73,20,352/- (Rupees Seventy-Three Lakh Twenty Thousand Three Hundred Fifty-Two) on 07.06.2017 and 16.11.2017 along with interest of Rs. 6,85,455/- (Rupees Six Lakh Eighty-Five Thousand Four Hundred Fifty-Five). 8. Ms. Hawelia, learned counsel, while referring to Section 73 of the Finance Act, 1994, which pertains to the time limit for issuance of Show Cause Notice, submits that it is absolutely clear that Show Cause Notice for any financial period ought to be issued within 30 (thirty) months from the relevant date. In the present case, the Show Cause Notice for the Financial Year 2016-17 was issued on 22.10.2021, which was admittedly beyond the period of 30 (thirty) months from the relevant date. Therefore, the same is barred by limitation. She submits that the respondent authorities have levied service tax on the petitioner for evasion of tax amounting to ....
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....e and the order being wholly without jurisdiction and barred by limitation, the authority has lost its jurisdiction with respect to the relevant period. The respondent authority had no jurisdiction and rather usurped the jurisdiction without any legal foundation in passing the impugned order dated 05.07.2022, as no demand was leviable on the petitioner. Therefore, she submits that the impugned order dated 05.07.2022 levying tax, interest, and penalty, being without jurisdiction, illegal and barred by limitation, is liable to be set aside and quashed. 12. Ms. Hawelia, learned counsel for the petitioner has relied on the following judgements: (i). Indian Oil Co. Ltd vs. State of Assam & Ors., WP(C) No. 6985 of 2010 decided on 03.09.2012. (ii). North East Coal Fields Vs State of Assam & Ors., WP(C) No. 5625 of 2013 decided on 30.09.2013 (Division Bench). (iii). Gupta Hardware Pvt. Ltd. Vs State of Assam & Ors., WP(C) No. 6453 of 2010 decided on 04.12.2012 (Division Bench). (iv). Commissioner of Wealth Tax, Gujarat vs Ellis Bridge Gymkhana, reported in (1998) 1 SCC 384. (v). Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors....
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....nance Act, 1994, as they are two different statutes. The Show Cause Notice was issued on the basis of data shared by the Income Tax Department and ample opportunity was provided to the petitioner by issuing the Show Cause Notice and the impugned order was passed after taking into consideration all the submissions made by the petitioner and the available records. He submits that as per the impugned order, interest was confirmed but it was already paid by the petitioner and therefore the amount of interest was appropriated and as such the petitioner did not require paying any more amount as interest and the issue of levy of interest has been settled. Therefore, the writ petition is not maintainable and liable to be dismissed not only on the ground of availability of alternative remedy but also on merit. 16. Mr. S. C. Keyal, learned Standing Counsel, CGST has relied upon the decisions in Rikhab Chand Jain vs. Union of India, passed in Civil Appeal No. 6719/2012, decided on 12.11.2025 and GNRC Limited vs. Union of India and Ors., reported in (2024) 4 GLT 834, to submit that if an alternative remedy is available to a party under the Statute, the writ jurisdiction should not normally ....
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....e is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter : Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty : Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opport....
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....Rupees Seventy-Two Lakh Thirty-Three Thousand and Ten) for the Financial Year 2016-17, with interest and also penalty, thereby, ordered the appropriation of service tax amount of Rs. 73,20,352/- (Rupees Seventy-Three Lakh Twenty Thousand Three Hundred Fifty-Two) and interest amount of Rs. 6,85,455/- (Rupees Six Lakh Eighty-Five Thousand Four Hundred Fifty-Five) would be within the jurisdiction of Appellate authority under the Statute. 23. In the case of Whirlpool Corporation (supra), the Hon'ble Supreme Court has held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has the discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where....
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....ice on 22.10.2021, demanding recovery of Service Tax amounting to Rs. 1,44,15,758/- (Rupees One Crore Forty-Four Lakh Fifteen Thousand Seven Hundred Fifty-Eight) along with penalty of an equivalent amount and interest applicable thereon. Consequently, vide an impugned Order-in-Original dated 05.07.2022, the adjudicating authority, i.e. the Additional Commissioner, CGST & CE, has affirmed the demand, whereby, demand of Service Tax with interest and penalty has been imposed and ordered the appropriation of service tax amount of Rs. 73,20,352/- (Rupees Seventy-Three Lakh Twenty Thousand Three Hundred Fifty-Two) and interest amount of Rs. 6,85,455/- (Rupees Six Lakh Eighty-Five Thousand Four Hundred Fifty-Five). 27. A reading of the provisions of Section 73 of the Finance Act, 1994, shows that the recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded requires the assessee to show cause why he should not be directed to pay the said amount provided where any service tax has not been levied or paid by reason of fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions with an intent to evade payment ....