Karnataka High Court
Scorpio Engineering Private Limited vs Commissioner (Appeals - Ii) on 24 April, 2018
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF APRIL, 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.17268 OF 2018 (T-RES)
BETWEEN:
SCORPIO ENGINEERING
PRIVATE LIMITED
132, WHEELER ROAD
COX TOWN
BENGALURU-560005
REP BY ITS AUTHORISED SIGNATORY. ...PETITIONER
(BY SRI KARTHIK.R, ADV.)
AND:
1. COMMISSIONER (APPEALS-II)
CENTRAL EXCISE AND SALES TAX
4TH FLOOR, TTMC
BMTC BUILDING
OLD AIRPORT ROAD
BENGALURU-560071.
2. ADDITIONAL COMMISSIONER,
SERVICE TAX
O/o COMMISSIONER OF SERVICE TAX
NO.16/1, SP COMPLEX
LALBAGH ROAD
BENGALURU-560027.
3. ASSISTANT COMMISSIONER,
DIVISION-II
O/O COMMISSIONER OF SEVICE TAX
NO.16/1, SP COMPLEX
LALBAGH ROAD
BENGALURU-560027. ...RESPONDENTS
(BY SRI K.M.SHIVAYOGISWAMY, AGA)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 30.04.2014 PASSED BY THE R-1
ANNEXED AS ANNEX-E AND TO CONSEQUENTLY FOR-BEAR
THE R-3 FROM INITIATING ANY RECOVERY PROCEEDINGS
PURSUANT TO THE RECOVERY NOTICE ISSUED BY IT
DATED 12.02.2018 ANNEXED AS ANNEX-G AND ETC.,
THIS WRIT PETITION IS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Learned counsel Sri K.M. Shivayogiswamy is permitted to accept notice on behalf of the respondents.
2. Petitioner has challenged the order dated 30.04.2014 passed by the respondent No.1 and consequently forbear the respondent No.3 from initiating the recovery proceedings pursuant to the recovery notice dated 12.02.2018 marked at Annexure-G to the writ petition.
3. Learned counsel Sri Karthik.R appearing for the petitioner would contend that for a subsequent period relating to October 2011 to 3 September 2012 by order dated 30.12.2016, respondent authorities have concluded the assessment in favour of the assessee. However, for the earlier period relating to January 2008 to September 2011 by passing order dated 30.04.2014, impugned herein, are demanding the payment of service tax on the ground that petitioner indeed has issued a consignment note as contemplated in Section 65(50b) of the Finance Act, 1994 construing the petitioner as Goods Transport Agency, which is contradictory to the subsequent decision of the authorities. Hence, the learned counsel seeks to set aside the order impugned herein and direct the respondents not to proceed with the recovery proceedings.
4. Learned Sri K.M. Shivayogiswamy appearing for the respondents would submit that petitioner without availing alternative and efficacious remedy available under the Act has approached this Court. On this ground writ petition is liable to be 4 dismissed. The learned counsel would further submit that each assessment year is different and distinct and the factual aspect disputed herein whether the petitioner is Goods Transport Agency (GTA) or Goods Transport Operator (GTO) requires to be examined by the Appellate Tribunal. Hence seeks for dismissal of the writ petition.
5. Having heard the learned counsel appearing for the parties, the arguments advanced at the hands of the learned counsel for the respondents appears to have some force. The disputed question of fact whether the petitioner is Goods Transport Agency or Goods Transport Operator cannot be adjudicated in the writ proceedings. No ground is made out by the petitioner to challenge the impugned order dated 30.04.2014 belatedly at this stage that too circumventing the alternative and efficacious remedy available under the Act. In the circumstances, writ petition is bereft of any substance stands dismissed with liberty to the petitioner to resort the appropriate 5 proceedings in accordance with law before the appropriate forum. No order as to costs.
Sd/-
JUDGE KLY/