TMI Blog2023 (6) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled for exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to this case - The direction to relegate a tax payer to avail statutory remedy, which is more efficacious is the principle of self-restrain adopted by the Constitutional Courts. Therefore, as alternative and efficacious remedy is available to the petitioner, this Court is not inclined to entertain this writ petition and therefore, this writ petition challenging the legality of the impugned order-in- original stands dismissed at the motion stage without issuance of notice upon the respondents. It is provided that if the petitioner is advised to seek alternative and efficacious remedy by filing a statutory appeal, the period spent from 21.03.2022 till the date of delivery of order i.e. 22.06.2023, would be entitled to be excluded from computation of limitation. Petition dismissed. - WP(C)/2085/2022 - - - Dated:- 22-6-2023 - Hon ble Mr. Justice Kalyan Rai Suran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved with letters dated 10.11.2016 and 22.07.2019 to furnish details, which was not responded to. It was also submitted that the reference to the said two letters dated 10.11.2016 and 22.07.2019 were referred to in the demand -cum- show cause notice, but in reply the petitioner had not denied the receipt of the said two letters. It is submitted that the contract work otherwise carries an incidence of service tax and therefore, if any service fell in the exempted category, the assessee has a duty to disclose all facts and then claim exemption from service tax liability. Thus, it is submitted that the petitioner has not been able to make out a case that the show-cause notice dated 07.11.2019 or the impugned order-in-original dated 28.11.2021 was vitiated by any reason whatsoever. In support of his submissions, the learned standing counsel for the respondents has placed reliance on the case of Magadh Sugar Energy Ltd. v. State of Bihar Ors., (2021) 0 Supreme(SC) 517 (para-19): 2021 SCC OnLine SC 801. 5. Per contra, the learned counsel for the petitioner, while opposing the preliminary issue of maintainability, has submitted that in this case, the petitioner was awarded contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner had not filed his service tax return and also did not disclose his gross contractual dues receipt or disclosed service tax component which is exempt from the incidence of service tax. 8. The learned standing counsel for the respondents has demonstrated that when notices were issued to the petitioner on 10.11.2016 and 22.07.2019, referred to in the demand-cum-show cause notice dated 07.11.2019, the petitioner had not produced documents like (i) copies of invoices issued, (ii) calculation sheet of service tax, (iii) copies of ST-3 return, (iv) income tax returns, (v) balance sheet and profit and loss accounts, etc. 9. The learned counsel for the petitioner contends that all the payments received by him are from (i) Irrigation related works for the Irrigation Department, Govt. of Assam, (ii) Construction of Fish Market for the Directorate of Fisheries, Govt. of Assam, (iii) NF Railway for earthwork, construction of retaining walls, side drains and other ancillary works, and that such receipts are covered by Mega Exemption notification no. 25/2012-ST dated 20.06.2012. If the said contention is true, then perhaps the petitioner can make out a case that the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere echoed in CCE v. Dunlop India Ltd., (1985) 1 SCC 260 in the following words: (SCC p. 264, para 3) 3. ... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 50. In Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under: (SCC pp. 175-76) 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is dutybound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfacto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could hardly be any reason since the High Court itself is the appellate forum. 7 . Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies. 8 . Now so far as the reliance placed upon the decisions of this Court by the learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under consti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
