TaxTMI 
TaxTMI 
2026 (2) TMI 126
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....gaged in the business of providing transportation service and supply of tangible goods. For the Financial Year 2014-15 (October, 2014 to March, 2015) to Financial Year 2017-18 (upto June, 2017) for services rendered by the petitioner, a summons dated 10.05.2018 was issued by Superintendent, Anti-Evasion, Goods & Services Tax, Dibrugarh Commissionarate under Section 14 of the Central Excise Act 1944 read with Section 80 of the Finance Act, 1994. The petitioner was asked to appear in person or through authorized representatives on 30.05.2018 for recording statements and submission of certain documents such as copies of Form 26AS, balance-sheet with profit and loss for the period 2012-13 to 2016-17, copies of contract agreements, work orders etc. The petitioner initially sought for extension of time to submit the relevant papers and documents sought for and eventually submitted all its documents in support of his case. Thereafter, a show cause notice dated 31.12.2020 was issued by the competent authority which although initially stated to have been not received by the petitioner but upon personal appearance before the competent authority, copies thereof were served by the respondent a....
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....reement and payment particulars were also submitted as proof thereof. 3. However, the respondent authorities did not consider these submissions of the petitioner and vide the impugned order-in-original No. V(15)104/ADJ/ST/COMMR/DIB/2020/330-334 dated 23.05.2022 had assessed an amount of Rs. 1,17,27,034/- as service tax payable by the petitioner. The demand of service tax raised was confirmed for the Financial Year 2014-15 (Oct-March) to 2017-18 (April-June) in terms of Section 73(1) and 68 of the Finance Act 1994 and Rule 6 of the Service Tax Rules, 1994 read with Section 174(2) of the CGST Act, 2017 and also imposed an equal amount of penalty of Rs. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000/- under Section 20 of the Act. Being aggrieved, the present writ petition has been filed putting a challenge to impugned order-in-original No. V(15)104/ADJ/ST/COMMR/DIB/2020/330-334 dated 23.05.2022 passed by the Additional Commissioner, Goods and Services Tax, Aizawl (respondent No. 5). 4. Opening the arguments on behalf of the writ petitioner, Dr. Ashok Saraf, learned Senior Counsel has urged before the Court submits that pursuant to receipt of summon preceed....
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....herefore the amount was to be recovered by the demand cum show cause notice under proviso to Section 73(1) of the Finance Act, 1994 by invoking the extended period of limitation along with interest at appropriate rate under Section 75 of the Finance Act, 1994. The petitioner was therefore called upon to show cause as to why the service tax amounting to Rs. 1,44,82,015/- for the Financial year 2014-15 (October, 2014 to March, 2015) to Financial Year 2017-18 (upto June 2017) should not be demanded for recovered from the writ petitioner under the appropriate sections mentioned in the show cause notice. 6. The learned Senior counsel for the petitioner strenuously submits that the very basis of issuance of the demand cum show cause notice was on a mistaken belief of the department that any service tax is due from the writ petitioner whereas for the services rendered by the writ petitioner in respect of IOC, Marketing Division IOC and ONGC, no service tax was outstanding from the petitioner and in respect of sale of flat the amounts received were not at all related to service tax. The learned Senior counsel for the petitioner strenuously submits that as per notice for personal hearing....
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....ich is not correct. The petitioner also annexed a table of calculation of service tax wherein it reflected that the petitioner has made payment to the tune of Rs. 38,60,514/- in respect of service tax, which was substantiated by challans. This goes to mean that the petitioner made some excess payment of service tax leave alone any short payment as alleged by the respondent Department. 8. The learned Senior counsel submits that the Additional Commissioner, Goods & Services Tax, Aizawl however did not consider any of the submissions of the Petitioner and vide the impugned Order-in-Original dated 23.05.2022 assessed an amount of Rs. 1,17,27,034/- as service tax payable by the Petitioner. In the said Order-in-Original dated 23.05.2022, the Additional Commissioner, Goods & Services Tax, Aizawl so confirmed the demand of service tax of the said amount of Rs. 1,17,27,034/- for the Financial Year 2014- 15 (Oct-March) to 2017-18 (April-June) in terms of Section 73(1) and 68 of the Finance Act, 1994 and Rule 6 of ST Rules, 1994 read with Section 174(2) of CGST Act, 2017 and also imposed an equal amount of penalty of Rs. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000....
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....mitted that these information being placed before the authorities concerned pursuant to the summons issued itself, there was no case for suppression made out against the petitioner as sought to be alleged against the petitioner and thereby issuing the demand cum show cause notice by extending the prescribed period of time under Section 73 of the CGST Act. 11. The learned Senior counsel for the petitioner submits that for imposition of tax, there must be a declaration of liability under the statute and which the assessee is required to comply with. It is submitted that tax cannot be imposed on an analogy and inferences based on Form 26AS statement received from the Income Tax Department. In support of his contention, the learned Senior Counsel has pressed into service Judgment of the Apex Court rendered in Chatturam Horilram Ltd. Vs. Commissioner of Income Tax, reported in 1955 (2) SCR 290. It is submitted that in the said Judgment, the Apex Court by referring to a Judgment of the Federal Court held that there are three stages of imposition of taxes. There must be a declaration of liability which is the part of the statute which determines the liability in respect of the assessee....
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....s the same determination has not been made, the matter was remanded back to the Principal Commissioner, CGST for fresh determination and the assesses therein were given a opportunity to produce any relevant materials to show cause that the contract works for the service tax has been imposed for which the noticee is not liable to pay for such transaction. 14. It is submitted on behalf of the petitioner that by the said Judgment directed that after arriving at a conclusive determination reasoned order or a further demand notice as the case may be issued by the authorities. However, if on the other hand in the conclusion arrived at that the petitioner is not liable to pay service tax appropriate reason order is to be passed. It is submitted that the order has attained finality as no appeal has been preferred against the said Judgment. 15. The learned Senior Counsel for the petitioner also pressed into service Judgment rendered in Luit Developers Private Limited Vs. Commissioner of CGST & Central Excise, Dibrugarh (Service Tax Appeal No. 75792 of 2021) by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata. While dealing with the imposition of service tax levied on the ....
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.... to a finding that the said services were liable to Service Tax under the Finance Act of 1994 the impugned Adjudication Order is absolutely illegal, without jurisdiction, and the same is liable to be set aside and quashed. 17. It is further submitted by Dr. Saraf, learned Senior Counsel that in the present case the adjudicating authority has levied service tax without examining the facts and without coming to a finding that the said services were taxable and simply on the basis of the information available in Form 26AS statement of the Income Tax, has levied the service tax on the entire amount received, on pure inferences and analogy which is not permissible in law, and thereby the said order passed by the adjudicating authority is absolutely illegal, without jurisdiction and the same is liable to be set aside and quashed. 18. The impugned order in original is further assailed on the ground that the extended period of limitation is illegal as there was no suppression, fraud, collusion or willful misstatement or suppression of facts or contravention of any of the provisions of the Act. Dr. Saraf, learned Senior counsel submits that Section 73 specifies recovery of service tax....
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....ith a willful mis-statement. The latter implies making of an incorrect statement with the knowledge that the statement made was not correct. It was further held therein that a mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment duty in order to evade duty. 21. Referring to the Judgment of Apex Court rendered in CCE Vs. Chemphar Drugs & Liniments, reported in (1989) 2 SCC 127, the learned Senior Counsel, Dr Saraf, submits that the Apex Court while interpreting the provisions of Section 11A of the Central Sales Tax Act, 1944 held that something positive other than mere inaction or failure on the part of the manufacture or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability of invoking the extended period of limitation. 22. Reliance is also placed upon the Judgment of the Apex Court rendered in Cosmic Dye Chemical Vs. CCE., reported in (1995) 6 SCC 117, it is submitted that the Apex Court therein held that the words "contravention of an of the provisions of the Act or Rules" are qualified by the immediately following ....
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....is contentions, the learned Senior counsel refers to the Judgment rendered in Anisminic Ltd. Vs. Foreign Compensation Commission and another, reported in (1969) 2 WLR 163. Referring to the said Judgment, it is submitted that lack of jurisdiction may also arise if the authority in the intervening stage, while engaged on a proper enquiry, departs from the roots of natural Justice, or ask itself a wrong questions or takes into accounts matters which it was not directed to take into account. In such a situation it would amounts to a steps outside it jurisdiction. 25. The further limb of argument of the learned Senior Counsel for the petitioner is that the levy of interest in the instant case is absolutely illegal and without jurisdiction inasmuch as where service tax itself is not payable by the petitioner as the same has been levied illegally therefore the interest levied in the instant case is also liable to be set aside and quashed. It is submitted that in so far as the levy of the penalty is concerned, it is a settled law that in order to justify imposition of penalty the authority concerned must find out not only that there has been a default but should also consider the questi....
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....o other legal remedies available to him and a Superior Court in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not preferred his appeal. It cannot then be laid down as an inflexible rule that the superior Court must deny the writ when an inferior Court or tribunal by discarding the principles of natural justice and all accepted principle of procedure arrive at a conclusion which shocks the sense of justice and fair play. 27. Referring to the Judgment of this Court rendered in Hardeodas Jagannath Vs. Income Tax Officer, reported in (1961) 47 ITR 56, it is submitted that there is no inflexible rule that the existence of an alternative remedy is a bar to the issue of a writ of certiorari. The issue of various writs or directions is in the discretion of the Court and the Court while exercising its jurisdiction may take into consideration the existence of an alternative remedy as a mater of policy, but the existence of an alternative remedy and it is not per so as bar to the issue of a writ of certiorari. It is submitted by the learned Senior counsel that this position laid down by the Assam High Court has also su....
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.... be dismissed and the petitioner should be relegated to avail of the statutory alternative remedies prescribed. Unless the petitioner had availed of these remedies, there is no scope for entertaining the instant writ petition. Therefore, since the petitioners did not avail statutory remedy, the petition should be dismissed on this limited ground and the parties be relegated to the avail of the statutory remedy prescribed. In support of his contentions, the learned counsel for the respondent relies upon the following Judgments: 1. GNRC Limited Vs. Union of India, reported in 2024 0 Supreme (Gau) 973; 2. PHR Invent Educational Society Vs. UCO Bank and Ors, reported in 2024 0 Supreme SC 333; 3. Brahmaputra Television Network Vs. Union of India, reported in 2024 0 Supreme (Gau) 855 4. M/S Sailaja Commercial Construction Pvt. Ltd. Vs Union of India & Ors, (W.A. No. 188/2022) 5. Bekem Infra Projects Ltd Vs. Deputy Commissioner of State Tax, [SLP(C) No. 27712/2024]; 6. Sanjib Das Vs. Union of India, reported in 2022 0 Supreme (Gau) 284; 7. Sunil Gulati Vs. Additional Commissioner, CGST, Delhi South Commissioner & Anr. [W.P(C) ....
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....ility of the services provided to ONGC is concerned, the same has also been duly paid by the petitioner and 74 numbers of challans showing payment of service tax to the tune of Rs. 38,60,514/- was produced as a proof thereof and the further amount of Rs. 41,87,500/- which is reflected as gross receipt as per Form 26AS are related to sale of flats and apartments by the petitioner and therefore, the said amount is not relatable to service tax. All the relevant documents, both scanned copies thereof and physical copies were stated to have been submitted by the petitioner before the appropriate authorities. It is therefore claimed by the petitioner before this Court that the demand of service tax and penalty raised by the respondent authorities is completely erroneous and on non-appreciation of the facts and materials which have been placed before the assessing authority by the writ petitioner. In the pleadings, the gross receipts as per From 26AS are reflected below in a tabular form: FY FIRM GROSS RECEIPT AS PER 26AS 2014-15 ONGC LTD 8337843 TOTAL 8337843 2015-16 ONGC LTD 10860143 IOC MARKETING DIVISION 1435179 IOC LTD 338099 TOTAL 2....
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....r service portion in execution of works contract by any individual, Hindu Undivided Family or partnership firm, whether registered or not, including association of persons, located in the taxable territory to a business entity registered as body corporate, located in the taxable territory; (B) provided or agreed to be provided by any person which is located in a non-taxable territory and received by any person located in the taxable territory; (II) The extent of service tax payable thereon by the person who provides the service and the person who receives the service for the taxable services specified in (1) shall be as specified in the following Table, namely: Sl.No Description of a service Percentage of service tax payable by the person providing service Percentage of service tax payable by any person liable for paying service tax other than the service provider] (1) (2) (3) (4)] 1 in respect of services provided or agreed to be provided by an insurance agent to any person carrying on insurance business Nil 100% 2 in respect of services provided or agreed to be provided by a goods transport agency in respect of transport....
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.... pay freight is as mentioned in the notification by or, is a taxable service. Part II of the said notification specify the extent of service tax payable thereon by the petitioner who provides the services and the person who receives the service for the taxable services specified in Part (1) of the Notification. It is stated in the Part (II) that in respect of services provided or agreed to be provided by a goods transporting agency in respect of transportation of goods by road, 100% of service tax accrued thereon is liable to be paid by the person receiving the service. Explanation I of the Notification dated 20.06.2012 states that the person who pays or is liable to pay freight for the transportation of goods by road in goods carriage located in ' the taxable territory shall be treated as the person who receives the service for the purpose of this notification. In the present case, it is apparent from the above that the IOC Ltd. and IOC Marketing being the service recipient, 100 percent service tax was liable to be paid by them and no liability was vested upon the service provided i.e. the petitioner in this case. That being the case, there was no liability of service tax on th....
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....GC for services provided to them. It is seen that only when the petitioner or any vendor for that matter pays the service tax liability and produce the challan of payment of service tax to the authorities, only then the ONGC releases the payment to the vendor. The discharged the service tax liability assessed by the ONGC is received by the service provider by first paying the amount so assessed in the Government exchequer and submitting the Payment Challan to the ONGC and only thereafter the ONGC releases the payment to the petitioner. In the present case, ONGC made payment of the amount reflected in the Form 26AS of Income Tax Department, only after production of the challans showing payment of service tax by the petitioner to the Government Exchequer and as such, the question of liability to pay service tax on the said amount does not arise at all. The petitioner has made payments of service tax to the tune of Rs. 38,60,514/- on various dates for the services provided to ONGC. This position on facts has not been disputed by the respondents. 41. It is seen that the service tax amount paid by the petitioner directly to the Government exchequer i.e. Rs. 38,60,514/- and the amount....
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....-tax, Bihar [(1947) F.C.R. 116 at 126; 15 ITR 302, at 302] (quoting from the judgment of Lord Dunedin in Whitney Vs. Commissioners of Inland Revenue [(1926) A.C. 37] 'there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex-hypothesi, has already been fixed. But assessment particularses the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay" 45. Again in A.V Fernandez Vs. State of Kerala, reported in (1957) 8 STC 561, the Apex Court held that the three stages in the imposition of tax which are laid down predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to pay tax which is imposed in terms of the taxing statute, then the provisions with regard to the assessment of such liability is to be followed. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax im....
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....the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities." 46. Coming to the facts of the present case, in the absence of any specific averments made before this Court, it is seen that in the impugned order-in-original although at paragraph 2.2 therein, the respondent authorities had held that the assessee had failed to the reply to the show cause notice within the stipulated period but subsequent paragraphs reveals that the appellant did reply and submit all the relevant documents. There is a categorical finding by the respondent No. 5 at Paragraph 2.8 of the impugned order-in-original that upon scrutiny of the documents i.e. copy of the sales agreement, payment particulars etc submitted by the n....
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....GST Dibrugarh vide CCO's Order vide C.No. IV(11)13/CCO/GHY/ Tech-I/ADJ/Pt.I/2019/595-97 dated 16/02/2022, the case has been transferred to the Additional Commissioner CGST Aizawl thereby the adjudicating authority had please to grant PH on 04/03/2022,, 07/03/2022 and 09/03/2022 and informed the notice to appear in person or through authorized representatives on either of the scheduled dates with an option to appear physically or through online virtual meeting. Contact numbers of the departmental officers and office email as well were also provided to the notice for enabling him to make any communication in this regard from his side to the adjudicating authority. The noticee did not appear for PH on the scheduled dates. 2.4 I find that the SCN which was issued to the noticee on 31/12/2020 and the noticee i.e. Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar. Assam - 785640 failed to reply to the SCN within the stipulated time. The SCN was issued on 31.12.2020 which is more than sufficient time to defend the case. I find that sufficient opportunity has been provided in terms Section 33A of the Central Excise Act. 1944 as made applicable to Se....
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.... not Service Tax related. He also submitted the details of Sale Agreement, payment particulars etc. However, the notice failed to submit the reply of SCN of SCN till the filing of this order. 2.7. Now, I find that the issue to be decided by me in terms of the SCN is whether- 2.7.1 The notice, Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam-785640 is liable to pay service tax to the tune of Rs. 1,44,82,015/- (Rupess One Crore Forty Four lakhs Eight Two Thousand and Fifteen) only (including cess) as detailed in the foregoing para 1.3.1 on the services rendered during the period from F.Y 2014-15 (October, 2014 to March, 2015) to FY 2017-18 (upto June, 2017) under the proviso of Section 73(1) of the Finance Act, 1994 as amended. 2.7.2. Interest is liable to be charged and realized from them in terms of Section 75 of Finance Act, 1994; 2.7.3 Penalty should not be imposed on them separately under the proviso of Section 78 (1) of the Finance Act, 1994 as amended for non-payment and short payment of Service Tax (including Cesses) as stated above. 2.7.4 Penalty should not be imposed on them under Section 7....
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....pecified in the Negative list. 2.11 In view of the discussions and findings in the foregoing paras, I find that the noticee is required to pay to the Government exchequer as furnished below based on Form 26AS. which he failed to pay and also suppressed the same to recovered from them under proviso to Section 73(1) of the Finance Act. 1994, as amended, by invoking extended period of limitation along with appropriate rate of interest under as per Section 75 of the Act, ibid. FY Firm Gross Receipt as per 26 AS Total Value for TDS Taxable Value Rate Service Tax ST3 Short paid 2014-15 ONGC Ltd 8337843 Total 8337843 8337843 12.36% 1030557 0 1030557 2015-16 IOC Marketing Division 14351798 IOC Ltd 338099 Total 25550040 25550040 25550040 14.50% 3704756 503833 3200923 2016-17 ONGC Ltd 9409330 IOC Ltd 18080803 ....
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....n the recital in the impugned Order-in-Original that the petitioner has produced the 74 numbers of challans showing payment of service tax to the tune of Rs.38,60,514/-. That apart, an amount of Rs. 12,77,000/- on account of service tax from various bills of the petitioner have been withheld by the ONGC by deducting the same from the bills paid to the petitioner. 48. Therefore, it appears to the Court that in so far as the service tax dues of the petitioner as regards the services rendered to IOC, IOC Marketing Division and ONGC have been satisfactorily submitted before the authorities and the revenue authorities also do not dispute that the said amount has been paid by the petitioner as reflected. In so far as the amount of Rs. 41,87,500/- shown as gross receipts in Form 26AS relatable to sale of flats and apartments they are not related to service tax for which the relevant agreements and payment particulars were also produced. Even assuming at this stage that there could be some clarity to be offered from the petitioner in respect of the sale of flats and apartments and the payment of service tax thereon, the very fact that the IOC, IOC Marketing Division and the ONGC have be....
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....nal is therefore is bad and the same is liable to set aside. 50. Coming to the question of the invocation of the extended period of limitation, it is necessary to refer to the provisions of Section 73 of the Finance Act, the same is extracted below: Section 73:- Recovery of Service tax not levied or paid or short-levied or short-paid or erroneously refunded.- 73 (1) where any service tax has not been levied or paid or short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within eighteen months from the relevant date serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the persons to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) willful misstatement ;or (d) suppression of facts; or (e) contravention of any of the provisions of this c....
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....tion 73 can be invoked. In the event, it is invoked a notice has to be issued within a period of 18 months from the relevant date on the person chargeable with service tax. 53. In this context, it is necessary to refer to the case laws cited before this Court. In Continental Foundation Joint Venture Holding (Supra), the extended period of limitation under Section 11A of the Central Excise and Salt Act, 1944 was under consideration. The Apex Court held that mere omission to give correct information did not constitute suppression unless that omission was made willfully in order to evade duty. The Apex Court held that suppression would mean failure to disclose full and true information with the intent to evade payment of duty. When the facts are known to both the parties, omissions by one party would not constitute suppression. It was held that an incorrect statement cannot be equated with a willful mis-statement. The latter implies making of an incorrect statement with the knowledge that the statement made was not correct. The relevant paragraphs of the Judgment are extracted below: 12. The expression "suppression" has been used in the proviso to Section 11-A of the Act a....
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....these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word 'wilful' preceding the words "misstatement or suppression of facts" which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful. 56. Coming to the fact and the present proceedings from the recital of the impugned order-in-original, it is seen that the respondent authorities had held that the petitioner assessee did not willfully get service tax registration nor filed their periodical ST-3 returns and therefore did not discharge their service tax liabilities to the Government Exchequer with mala fide intention to evade payment of service tax. The assessing authority therefore concluded that in the absence of the periodical ST-3 returns being not filed by the ....
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....re a subordinate Tribunal and an authority is found to have assumed jurisdiction not vested on it a superior Court may invoke its extraordinary jurisdiction to correct such errors which were exercises by the authorities. The powers of a superior Court to examine the authority assumed by a Tribunal was the issue in Anisminic Ltd (Supra). It was held therein that the jurisdiction of the superior Court is to see that the inferior court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualification and conditions of its exercise; the other is the observance of the law in the course of its exercise. If, therefore, a tribunal while within the area of its jurisdiction committed some error of law and if such error was made apparent in the determination itself (or, as it is often expressed, on the face of the record) then the superior court would certainly be competent correct that err....
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....ake a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior court. 60. Again in Rex Vs. Shoreditch Assessment Committee, Ex-parte Morgan, reported in (1910) 2 K.B. 859, it was held that no tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such Jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited Jurisdiction and unlimited power to determine such limit at its own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of th....
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....t do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter and to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. 66. Again in Shalini Soni Vs. Union of India, reported in (1980) 4 SCC 544, it was held by the Apex Court that it is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Applying this principle in CIT Vs Mahindra & Mahindra, reported in (1983) 4 SCC 392, the Supreme Court quashed a decision under Section 72-A of the Income Tax Act, as the government was "clearly influenced by irrelevant and extraneous materials vitiating the impugned conclusion. 67. In S.R Venkataraman Vs. Union of India, reported in AIR 1979 SC 49, the Apex Court held that an admi....
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....tive remedies are available and/or are not availed of by the assessee, has come up before this Court as well as the Apex Court in a Catena judgments. The Assam High Court in Hardeodas Jagannath Vs. Income Tax Officer, reported in (1961) 47 ITR 56 had clearly held that there is no inflexible rule that the existence of an alternative remedy is a bar to the issue of writ of certiorari. The issuance of prerogative writs or directions is always to the discretion of the Court and the Court while exercising its discretion may take into consideration the existence of an alternative remedy as a matter of policy, but the existence of an alternative remedy is not per se a bar to the issue of writ of certiorari. The High Court at Paragraph 42 held as under: "42 No Tribunal and no Officer can confer jurisdiction or authority or competence upon itself or himself by misconstruing a section. An authority cannot claim to exercise jurisdiction by construing a section erroneously and thereby contending that the section so wrongly construed gives him the necessary power. In such a case, if the section has been wrongly construed, it would be a clear case of absence of jurisdiction apparent ....
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....t jurisdiction; or (iv) Where the vires of an Act is challenged 76. In Godrej Sara Lee Ltd (Supra), the Apex Court held that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". The Court made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. The Apex Court in further held that dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. The Apex Court further held that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dis....
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.... the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record." There appears to be a misconception that the High Court would re-appreciate the evidence, thereby making it into a second appeal, etc. WE believe that the High Courts are quite conscious of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court." 78. From a careful analysis of the judgments discussed above, it is clear that the writ Court can interfere any arbitrary action notwithstanding the availability of alternative remedy when the authorities acts within jurisdiction or in exercise of jurisdiction or there is a procedural irregularity or were the order is high handed and is palpably illegal order in as much the same would amount to violation of Article 14 of the Constitution of India. In the present case the adjudicating authority has imposed service tax most arbitrarily without considering the materials placed on record by the petitioner that the transportation services rendered by the petitioner to India Oil Corporation Ltd. were liable to service tax on reverse charge ....
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....rder in original was a proceeding initiated by the respondent authority after invoking the extended period of limitation under Section 73(1). Therefore, in an ordinary course of proceedings seeking recovery of tax demanded, the normal course would be to avail of the statutory remedies. However, before the authorities invoke their jurisdiction under section 73(1), it is the mandate of the statute that the authorities must come to a specific conclusion that the jurisdiction conferred on the revenue authorities under Section 73 (1) can be invoked in the facts and circumstances of the present case. As have been elaborately discussed in the preceeding paragraphs that for invocation of jurisdiction under section 73(1), the respondent authorities must come to a conclusion that the invocation of the powers under section 73 (1) is necessary as the petitioner's case falls under any of the conditions mentioned in the proviso to section 73(1) of the CGST Act. However, from the recital of the order impugned, it is seen that the primary reason for invoking the jurisdiction under section 73(1) is non furnishing of the required documents by the petitioner assessee to be full satisfaction of the re....
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....d to invoke the powers conferred under section 73(1). 80. It is a trite law that greater the power prescribed under the statute greater will be the responsibility on the authorities on whom it has been bestowed to ensure that no infraction of the provisions of the Act and the Rules are made and no injustice is caused to the assessee during the process of demand and recovery. This Court while examining the facts and circumstances in minute detail and the exposition of the law laid down by various Courts including this Court as well as the Apex court of the country has held that for the Revenue authorities to invoke the powers under section 73(1), there must be a conclusive finding by the Revenue authorities that the petitioner assessee under the facts and circumstances, had wilfully and deliberately evaded or neglected to pay the GST. This conclusion by the Revenue authorities is not apparent and discernible from a plain reading of the impugned order in original. It is not a case that the petitioner assessee never responded to the notices. It is not a case that the documents which were called for required to be submitted were not furnished. The ST-3 Returns filed by the petitione....