TMI Blog2015 (4) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner will have to shell out more than 7.5 lakhs, it cannot be a ground to exercise to interfere with under Article 226 of the Constitution of India. Only in rarest of the rare cases, the court will have to interfere with the decision quoted by the petitioner and the relevant portion is reflected in para 8 of the decision of the Apex Court. Since in this case, the decision taken by the respondent cannot be said to be against the provision of law and there is an arbitrary action without sanction of law - Decided against assessee. - W.P.No.8443 of 2015, M.P.Nos.1 and 2 of 2015 - - - Dated:- 25-3-2015 - S.Vaidyanathan J For the Appellant : Mr.M. V. Swaroop ORDER Petitioner has come forward with the aforesaid prayer. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and the act of the respondent in passing the impugned order has got to be interfered with under Article 226 of the Constitution of India. The petitioner submitted that imposing of service tax when there is no service rendered is a jurisdictional aspect which can be decided by this court without relegating the petitioner to the alternative remedy. The petitioner further submitted that the petitioner needs to have paid 7.5% of the amount determined by the original authority which is a condition precedent and there is no provision for waiver in the amended provisions of the Finance Act. The petitioner drew the attention of this court to the decision reported in RAZA TEXTILES LTD. v. INCOME TAX OFFICER, RAMPUR ((1973) 1 SCC 633) and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226 of the Constitution of India in the Patna High Court for directions or orders or writs, including a writ in nature of certiorari calling for the records and quashing the order of the Assistant Commissioner. By the petition the jurisdiction of the Assistant Commissioner to make the assessment and the demand of tax in respect of stockyard sales were questioned. 6. The learned Additional Solicitor-General, who appeared for the Assistant Commissioner, raised a preliminary objection that the appellant Company could not be heard as it had not exhausted the remedies available under the taxing statutes which gave right of appeal and revision and finally for invoking the advisory jurisdiction of the High Court. He also called upon Than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked. In our judgment the present is an example of the exceptional situation above contemplated just as Himmat Lal v. State of M.P. (1954 SCR 1122) was another instance which came before this Court. 5. The learned counsel for the petitioner further contended that when there is jurisdictional question involved and there is infirmity in the order, this court is empowered to extend the powers of extra-ordinary jurisdiction under Article 226 of the Constitution of India and set aside the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in the instant case since the case laws are with regard to bona fide belief that they are not rendering certain services, non suppression, malafide intention etc., and are with regard to suppressions and not wilful suppressions. In the instant case, the noticee had adopted double set of invoice system to mis-lead the government, not clarified M/s.Dream Castle - M/s.RJK Investments - DLF relationship indicates clearly that there exist suppression of fact which would have gone unnoticed but for the verification of records and documents during timely investigation conducted by the officers of Service Tax Commissionerate. The Hon'ble Supreme Court in the case of CCE Vs Mehta and Co, (2011(264) ELT 481 (SC)) held that cause of action ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act, 1994 is inevitable. Accordingly I hold that the assessee is liable for imposition of penalty under Section 77 and Section 78 of the Finance Act, 1994. I also hold that the noticee have rendered themselves liable for payment of interest on the service tax not paid. 8. Since a finding rendered by the authority cannot be stated that it is a jurisdictional aspect to be interfered by this court and it is based on the facts of the case, the authority has rendered a finding, merely because the petitioner will have to shell out more than 7.5 lakhs, it cannot be a ground to exercise to interfere with under Article 226 of the Constitution of India. Only in rarest of the rare cases, the court will have to interfere with the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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