AI Insights
The case involves Chandra Shekhar Bhtevra, the petitioner, who challenged an order passed by the Assistant Commissioner of Central Excise & Service Tax, Chittorgarh, which created a service tax liability of Rs. 17,95,516 for the assessment years 2010-11 to 2014-15. The petitioner argued that the order was passed without an opportunity of hearing and beyond the period of limitation, claiming it was arbitrary and without jurisdiction. The respondents included various officials from the Ministry of Finance and the Central Goods and Service Tax. The court dismissed the petition, emphasizing the availability and appropriateness of the statutory appeal process.
Appeal Details
Counselvise Citation
[2019] 140 COUNSELVISE.COM (IT) 802957 (HC-RAJASTHAN)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
07-01-2019
Assessment Year
misc
Judgement Text
"HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ No. 19134/2018 Chandra Shekhar Bhtevra S/o Shri Shankar Lal Bhtevra, Aged About 30 Years, Bari Sharwa, Tel. - Kushalagarh, Distt. - Banswara, (Raj.) Presently Residing At House No. 35 B, 17- Kasturba Nagar, Near Sai Temple, Ratlam (M.p.). ----Petitioner Versus 1. Union Of India, Through The Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, Shastri Bhawan, New Delhi - 110001. 2. The Superintendent, Central Goods And Service Tax Range - XXX, Rati Talai, Banswara, Rajasthan. 3. Assistant Commissioner, Central Excise And Service Tax Division, Plot No. 168-172, Sector - 4, Gandhi Nagar, Chittorgarh. 4. Commissioner CGST (Appeals), G-105, New Jodhpur Industrial Area, Opposite Diesel Shed, Jodhpur Rajasthan. ----Respondents For Petitioner(s) : Mr. RDSS Kharlia HON'BLE MR. JUSTICE SANGEET LODHA Judgment 07/01/2019 1. This petition is directed against order dated 31.3.17 passed by the Assistant Commissioner, Central Excise & Service Tax, Division Chittorgarh, whereby the liability of service tax quantified at Rs.17,95,516/- has been created against the petitioner for the assessment year 2010-11, 2011-12, 2012-13, 2013-14 and 2014- 15. (2 of 3) [CW-19134/2018] 2. Learned counsel appearing for the petitioner contended that the order impugned has been passed by the Assessing Authority without giving an opportunity of hearing to the petitioner. It is submitted that the order passed beyond the period of limitation is ex facie without jurisdiction. Learned counsel submitted that the petitioner has come to know about the demand created only on service of the demand notice. It is submitted that on the one hand, the demand is created and on the other hand, the Assessing Authority has requisitioned copy of the balance sheet, Form No.26 AS and income tax returns from the petitioner vide notice dated 9.3.18 and thus, the action of the respondent in creating the demand is ex facie arbitrary. Learned counsel submitted that order having been passed by the Assessing Authority in violation of the principles of natural justice, the writ petition is maintainable notwithstanding the availability of remedy of appeal under the relevant statute. In support of the contention, learned counsel has relied upon a Bench decision of this court in “Smt. Kiran Kanwar vs. Union of India”, [D.B.C.Special Appeal (Writ) No.246/16, decided on 2.8.16]. It is submitted that as a matter of fact, the remedy of appeal available under the statute is onerous inasmuch as, for maintainability of the appeal, the petitioner is required to deposit 7.5% amount of the demand. 3. I have considered the submission of the learned counsel and perused the material on record. 4. Admittedly, the order impugned passed by the Assessing Officer is appealable under Section 85 of the Finance Act, 1994 and the petitioner has already preferred the appeal before the Appellate Authority which is pending consideration. It is settled law that the right to appeal is a creation of statute and it can always be (3 of 3) [CW-19134/2018] circumscribed by the conditions for exercise of the right. It is pertinent to note that the proviso to Section 48 (1) of the Act does not provide for the deposit of the entire amount due but only 7.5% of the demand created. In this view of the matter, this court is of the considered opinion that the condition of pre-deposit provided for exercise of the right to appeal, cannot be said to be onerous and therefore, there is absolutely no reason as to why the petitioner should be permitted to invoke the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India by passing the statutory remedy of appeal already availed. 5. In Smt. Kiran Kanwar’s case (supra) where the assessee had challenged reassessment notice under Section 148 of the Income Tax Act, 1961 which was issued by the Assessing Authority without there being any fresh material on record, the court observed that when the assessee had already disclosed fully and truly all material facts during the earlier assessment in absence of other material dehors the assessment proceedings, the reassessment notice issued was without jurisdiction and therefore, the writ petition preferred against show cause notice could not have been dismissed. Thus, the decision is clearly distinguishable. 6. In the result, the writ petition is dismissed in limine. (SANGEET LODHA),J 39-Aditya/- "
Other Referred Cases
Smt. Kiran Kanwar vs. Union of India
Laws Referred To
Finance Act, 1994, Income Tax Act, 1961
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