M/s.Balaji Infra Projects V. The Additional Commissioner and 2 Others

WP/29259/2022

AI Insights

The case involves M/s. Balaji Infra Projects challenging an Order-in-Original issued by the Additional Commissioner of Central Tax, Ranga Reddy GST Commissionerate, which demanded service tax for the period 2015-16 to 2017-18 without proper notice or hearing. The petitioner argued that the order was arbitrary, contrary to law, and violated principles of natural justice as it was passed without serving any notice or providing an opportunity to be heard, and was also barred by limitation. The High Court found that the show cause notice was not properly served, leading to the setting aside of the order and remanding the matter for a fresh decision.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 726564 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 27-07-2022
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Finance Act, 1994
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B SARMA; NAMAVARAPU RAO
• Assessee Lawyers: SHAIK BASHA
• Keywords: Abatement; Ex-parte; Limitation; Mandamus; Natural Justice; Order-in-Original; Service tax
• Section: 72; 75; 77; 78; 73(2); 70

Judgement Text

"HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY ,THE TWENTY SEVENTH DAY OF JU TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE THE CHIEF JUSTICE UJJAL BHU AND THE HONOURABLE MRS JUSTICE SUREPALLI NAND WRIT PETITION NO:29259 OF 2022 Between: M/s.Balaji lnfra Projects, Plot No. 115, Sy.No.'1 17, J.P.Nagar, Miyap - 500 050. Rep. by its Managing Partner and Authorised Signa Naik AND '1 . The Additional Commissioner, Office of the Commissioner of Ce Ranga Reddy GST Commissionerate, Posnet Bhavan, Tilak Roa Hyderabad - 500 00'1. 2. The Deputy Commissioner, Office of the Deputy Commissioner of Tax, Gachibowli CGST Division, Ranga Reddy CGST Commissio Masab Tank, Hyderabad. 3. The Union of lndia, Rep. by its Secretary to Government, Depa(m Revenue, Ministry of Finance, New Delhi. Petition under Article 226 ol the Constitution of lndia praying circumstances stated in the affidavit filed therewith, the High Cou pleased to issue any order or direction more particularly one in the nat of Mandamus or any other appropriate Writ or Order or direction de action of the 1st respondent in passing the Order-in-Original No.18/202 (ADC)-Sf, dated 2710512022, served on the Petitioner on 0610612022, period 2015-16 lo 2017-18 (upto June, 2017) under the Service Tax Finance Act, 1994, without serving any notice, without providing an op being heard to the Petitioner as contemplated under Section 72 and 7 Finance Act, 1994, without granting exemption on abatement portio making any enquiries, as arbitrary, contrary to law, weight of evid probabilities of the case and also the same is ex-facie barred by limitat tax period 2015-16 to 2017-18 (upto June, 2017) and further the Order-i is in violation of Principles of Natural Justice and Rule of Law and con set aside the Order-in-Original No.18/2022-23- Adjn-(ADC)-ST, dated 271 passed by the 1st respondent as null and void, Petition under Section 151 CPC praying that in the circumstances s the affidavit filed in support of the petition, the High Court may be pleased stay of all further proceedings, pursuant to the Order-in-Original No.1B/2 | 3276 | r, Hyderabad ETITIONER ral Tax, , Ramkote, entral rate, nt of ...RES ONDENTS hat in the may be re of Writ laring the -23-Adjn- r the tax per the rtunity of A of the without ce and for the Orig ina I quently 5/2022, ted in grant 22-23- lA NO: 1 OF 2022 lvl r. M. Raju Adjn-(ADC)-ST, dated 2710512022 passed by the 1st res,pond(lnt, served on the Petitioner on 06/06/201 2, for the tax period 2O15-16 to 2017-18 (upto June, 2017) under the Service Tax ls per the Finance Act 1994, pending disoosal of the above Writ Petition. Counsel for the Petiti< ner: SRl. SHAIK JEELANI BASHA Counsel for the Respr ndent No.1 & 2: SRI B NARASIMHA SAIIMA counsel for the Resp< ndent No.3: sRl NAMAVARAPU RAJESHWAR RAO (ASSGT) THE COURT MADE TI- E FOLLOWING ORDER: I No.3. THE HON'BLE THE CHIEF JUSTICE UJJAL B order-in-original dated 27.O5.2022 issued by UYAN AND THE HONOURABLE MRS JUSTICE SUREPALLI ANDA WRIT PETITION No.29259 of 2022 ORDER: (Per tlrc Hon'bte the CLLief Justtce tljjal Bhuganl Heard Mr. Shaik Jeelani Basha, learned coun I for the petltroner and Mr. B.Narasimha Sarma, learned c nsel for respondent Nos.1 & 2. Also heard Mr. B.Mukherje , learned ccunsel representing Mr. Namavarapu Rajesh Rao, learned Assistant Solicitor General of India for re po nden t 2. By filing this petition under Article 22 of the Constitution of lndia, petitioner seeks quas i.g of e l\"t respondent under Section 73(21 of the Finance Act, 1 4 3. By the aforesaid order, 1\", respond t has nalty. 4. Challenge has been made to the aforesaid I I rder on the ground that the show cause notice prece g the confirmed the demand ald interest besides imposing I I i I H{ i.i 5r Sfl..i l . P.. o. 2 lt 2 5' t oJ 2()22 apart rhe rlolic j of personai ir earing ! ,as all;o nc)t s.er-ved. -2 order in origin li ' ,as not ser rcd upon thc pctllroller That 5. I/e have peruscd the order-irr-ori ginal dated 27.O5.2O'22. l'ara 4 of the said order deals v,'ith shou, cause notice dated 2 +.12.2O2O issued to the petitioner 'I'he sarne is extracied i-rerc rnder: '4. Hence, Shog, Cause Notic,: r,idc O.l?.|Jo.138/2020-Adjn(Commr)ST dated 2,+.12.2t)2O was issued to l3e assessee allegrng contraventicn ol Sr:ction 67, Section 68 and Section 70 of the Financc Act, 1994 rr:ad with Rule 6 anr I Rule 7 of Service '['a-x Rules, 1994. 'ltre Shou' Cause Not ce proposes to treat tJle differencr: in the income declared i r Income Tax Returns or in the Forrn 26A5 r.r.,hichever s higher for the period 2015-16 & 2016-17 and the value decl: red in the ST-3 Returns for the said pcriod as the considerat rn received for provision of taxable serv:cr:s under Finance /,r.t, 1994 and also proposes determination of service tax payabl r for the period April,2Ot7 to June, 2017 under the provisions of Section 72 of the said Act. Accordingly, the Show Cause N rtice proposes demand of sen'i<:e tax of Rs. I ,63,7( ,239/- (Rupees One Crore Slxty Three l,a