Parallel assessment proceedings for the same transaction, same period and in respect of same amount by different Jurisdictional Authority not permissible

[Bimal jain]

Dear Professional Colleague,

Parallel assessment proceedings for the same transaction, same period and in respect of same amount by different Jurisdictional Authority not permissible

We are sharing with you an important judgment of High Court, Allahabad, the case of Vandana Travels and Tours Vs. Commissioner (Appeals), Central Excise and Service Tax and 3 Others [2014 (12) TMI 866 - ALLAHABAD HIGH COURT] on following issue:

Issue:

Whether parallel assessment proceedings for the same transaction, same period and in respect of same amount by different Jurisdictional Authority is permissible?

Facts and background:

Vandana Travels and Tours (“the Petitioner”) is a Service provider as Rent-a-cab-operator. An Assessment Order dated March 16, 2010 for the period from September 2000 to September 2005, October 2005 to March 2006, April 2006 to March 2007 and May 2008 to July 2008 was passed by the jurisdictional Assessing Authority (“Respondent No. 2”) against which the Appellant filed an appeal before the Commissioner (Appeal) but the same was dismissed vide Order dated March 31, 2011 due to non-compliance of the condition of pre-deposit.

Being aggrieved, the Petitioner filed an appeal before the Hon’ble CESTAT, New Delhi, where the Hon’ble Tribunal set aside the Order of the Commissioner (Appeals) and remanded the matter back to the Respondent No. 2. Since the Respondent No. 2 did not pass the Order pursuant to the remand direction, the Petitioner filed Writ Petition before the Hon’ble High Court of Allahabad, which was disposed of vide Order dated March 12, 2014 directing the Respondent No. 2 to decide the matter within one month. Thereafter, the Respondent No. 2 passed the Order-in-Original (“OIO 1”) confirming demand along with imposition of penalties.

However, a parallel Assessment proceedings for the same transactions, same period and in respect of the same amount received by the Petitioner from the service recipients was initiated against the Petitioner without jurisdiction by the Assistant Commissioner, Central Excise and Service Tax Division-II, Allahabad (“Respondent No. 3”). Another Order-in-Original dated May 22, 2008 (“OIO 2”) was passed by Respondent No. 3 creating a demand of Service tax of ₹ 4,53,242/- and penalty of ₹ 9,09,484/- against the Petitioner on the basis of another address.

The Petitioner came to know about OIO 2 for the first time when Respondent No. 3 sent recovery letters at the actual address/ business place of the Petitioner asking to deposit the alleged amount. Thereupon, the Petitioner moved an application dated September 30, 2013 to recall the Orders passed by the Respondent No. 3 on the ground that the jurisdictional authority i.e. Respondent No. 2 has already assessed the Petitioner for the same period and transactions but the same was rejected on the ground that the OIO 2 was not challenged by the Petitioner in appeal. Being aggrieved, the Petitioner preferred a petition before the Hon’ble High Court of Allahabad.

Held:

The Hon’ble High Court of Allahabad after observing that the Respondent No. 3 has initiated parallel assessment proceedings against the Petitioner and passed ex-parte OIO 2 in respect of the same transactions and for the same period for which the Petitioner was assessed by the jurisdictional Assessing Authority i.e. Respondent No. 2, held as under:

• Neither the Finance Act, 1994 nor the Rules made there under provides for any double assessment nor it can be permitted in view of the fact that the transaction in question have been assessed by the jurisdictional Authority;
• Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Thus the OIO 2 passed by the Respondent No. 3 was a complete nullity and therefore, the demand created thereunder was not legally recoverable from the Petitioner;
• If an Authority or Court lacks inherent jurisdiction to pass a decree or order, the decree or order passed by such Authority or Court would be void ab-initio.

Accordingly, the Hon’ble High Court set aside the OIO 2 as and all consequential proceedings initiated by Respondent No. 3 as nullity or void and decided the matter in favour of the Petitioner.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

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