TMI Blog2022 (10) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the entirety of the petitioners claim rests upon the judgement in the case of Calcutta Club that the officer has not had the benefit of, in passing the impugned orders. Thus, it would be preempting the issue, and stepping into the shoes of the officer, for this Court to embark upon the exercise of assessment, in such circumstances - The petitioner is permitted to approach the appellate authority, and appeals, if filed within three weeks from today, will be taken on file without reference to limitation but subject to all other statutory conditions and decided expeditiously in line with the judgement in Calcutta Club and in accordance with law. Writ petition disposed off. - WP Nos.24483 & 41112 of 2016 & 11796 of 2018 & 18338 of 2020 And WMP.Nos.20915 & 35103 of 2016 And 7224 of 2017, 13776 of 2018 & 22720 of 2020 - - - Dated:- 30-9-2022 - Honourable Dr. Justice Anita Sumanth For the Petitioner : Mr.Joseph Prabakar For the Respondents : Mrs.Hema Muralikrishnan Senior Standing Counsel COMMON ORDER The petitioner challenges orders-in-original dated 24.02.2016, 30.09.2016, 15.11.2017 and 17.07.2020, and statement of demands dated 24.02.2016, 30.09.2016, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of 2021, that came to be allowed. The Division Bench held that the availability of an alternate remedy was not an absolute bar to the maintainability of a writ petition, and thus it would have been appropriate had the single Judge heard the Writ Petition on merits rather than on the bar of alternate remedy. 7. The relevant paragraph reads thus: 4. We had an occasion to consider the correctness of similar orders, where writ petitions were dismissed, following the said decision of the Hon ble Supreme Court and held that there is no absolute bar for the Writ Court to test the correctness of the Order-in-Original, if the challenge falls under any one of the exceptions, which have been drawn by the Hon ble Supreme Court for entertaining writ petitions against orders in Revenue matters where appeal remedy has been provided.... 8. The Writ Petition was thus restored to the file of the single Judge, to be heard along with W.P.Nos.24483 of 2016, 41112 of 2016 and 18838 of 2020. It is as a consequence of the aforesaid order in Writ Appeal that the present Writ Petitions are grouped together and listed before me. 9. The petitioner submits that P I Clubs are a Mutual Insura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Each Member who may, for the time being, be entitled to receive from any Class any payment in respect of any loss, claim or demand shall bear and contribute his own proportion thereof as a Member. 12. Upon consideration of relevant clauses in the Articles, the authority arrives at the conclusion that the amounts remitted by the petitioner to the club constitutes consideration in lieu of insurance premium in respect of marine insurance services rendered, rejecting the plea of self-service. The operative portion of the impugned order reads as follows: 5.5 The noticee admittedly is one of the members of the service provider company viz., Britannia Steam Ship Insurance Association Limited and the fact is not in dispute. I have perused the Memorandum and Articles of Association of the said Association and find that since 19.02.1876, the objects for which the Association is established are the mutual insurance by the Association (1) of the ships of the Members, and of ships which the Members may be authorised to insure in their own names, and of ships in which they may be interested, and whether propelled by steam, sails or otherwise, and (2) of the freights of such ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to revenue neutrality of the issue before the authority, such plea is not pursued before me. The substratum of the petitioner s case is the judgment of the Hon ble Supreme Court in the case of State of West Bengal V. Calcutta Club Limited (2019 (29) GSTL 545 (SC). In the aforesaid judgment, the primordial issue dealt with by the Court relates to levy of service tax in the context of doctrine of mutuality and both in regard to incorporated and unincorporated associations. 14. The relevant portions of the judgement read thus: 81. When the scheme of Service Tax changed so as to introduce a negative list for the first time post-2012, services were now taxable if they were carried out by one person for another person for consideration. Person is very widely defined by Section 65B(37) as including individuals as well as all associations of persons or bodies of individuals, whether incorporated or not. Explanation an association of persons or bodies of individuals, whether incorporated or not , uses the expression a body of persons when juxtaposed with an unincorporated association . 82. We have already seen how the expression body of persons occur ring in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders. Several documents, including Memorandum and Articles of Association must be looked into and analysed and it would not be appropriate for the Writ Court to engage in this exercise. 17. Having heard learned counsel, I am of the considered view that the issue of whether the petitioner satisfies the principles of mutuality is best left to the respondent officer. No doubt, the authority has marshalled the facts presented. However, the judgment in Calcutta has been rendered on 03.10.2019 after the passing of the impugned orders. Thus, and in my considered view, it is for the officer to set the facts against the ratio of the judgement, appreciate the same in proper perspective and arrive at his conclusions as to whether the petitioner is entitled to its claim. 18. The availability of a statutory remedy is not an absolute bar to the maintainability of a writ petition and there are instances when the Writ Court will intervene to decide legal issues. However such a decision must be in the backdrop of undisputed facts and materials that emanate from the record or to correct flaws in the application of settled propositions where there has been such application, by the officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
