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2014 (5) TMI 1226 - CALCUTTA HIGH COURTDirection to make payment of the service tax component of the monthly rentals - HELD THAT:- In view of the decisions of the Supreme Court in the case of ABL INTERNATIONAL LTD. & ANR. VERSUS EXPORT CREDIT GUARANTEE CORPORTION OF INDIA LIMITED & ORS. [2003 (12) TMI 584 - SUPREME COURT] and in the case of HARBANSLAL SAHNIA AND ANR. VERSUS INDIAN OIL CORPN. LTD. AND ORS. [2002 (12) TMI 564 - SUPREME COURT], 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 disputed question of fact; rather the point involved is simple,-who between the first petitioner and the respondents, in terms of the agreement between the parties, is liable to bear the service tax. Insofar as the decision in BHAGWATI SECURITY SERVICES (REGD.) VERSUS UNION OF INDIA [2013 (11) TMI 649 - ALLAHABAD HIGH COURT] is concerned, it appears that a writ petition was presented before the Allahabad High Court by the petitioner against Union of India and the BSNL authorities. Under the agreement, security services were to be provided to the respondent no. 2. Service tax was demanded but was denied on the ground that the same was not contemplated in the agreement. 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 the occupier would be paid by the Government. That the respondents were not oblivious of their obligation to bear service charge is reflected from the letter dated April 30, 2012 - it is not a case that if obligation to make payment of service tax arises, the respondents would have discretion to foist the responsibility on the lessor (the first petitioner). Liability to bear service tax being that of the person receiving service, there can be no escape from the conclusion that the respondents are liable to bear service tax. The first petitioner is entitled to writs/orders in terms of prayers 'a' and 'b' extracted supra, with the only modification in regard to the rate of interest i.e. interest @ 10% instead of 18% - Petition allowed.
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