Allahabad High Court
Manish Kumar Singh And Another vs Union Of India And 4 Others on 19 November, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 37429 of 2019 Petitioner :- Manish Kumar Singh And Another Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Santosh Kumar Singh Counsel for Respondent :- A.S.G.I.,Anjali Upadhya,C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Santosh Kumar Singh, learned counsel for petitioner, Sri B.K.S. Raghuvanshi, learned counsel appearing for respondent-1 and 2, and learned Standing Counsel representing respondent-3 and Sri Ramendra Pratap Singh, Advocate, who has put in appearance on behalf of respondent no.4.
2. The petitioner is seeking a writ in the nature of mandamus commanding respondents-4 and 5 to refund amount of Service Tax to the tune of Rs.1,20,524/- deposited by petitioners as per demand raised by respondent-5 vide final calculation chart dated 5.4.2017.
3. Petitioners are aggrieved by levy of Service Tax on services in relation to construction of residential complex as defined under Section 65(105)(zzzh) of the Finance Act, 1994. According to learned counsel for petitioner levy of Service Tax on construction of residential complex was declared invalid by Delhi High Court in W.P.(C) 2235 of 2011 (Suresh Kumar Bansal Vs. Union of India and others) decided on 03.06.2016. Court in para-55 held as under :
"In view of the above, we negate the challenge to insertion of clause (zzzh) in Sub-section 105 of Section 65 of the Act. However, we accept the petitioners contention that no service tax under section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of composite contracts such as the ones entered into by the petitioners with the builder. The impugned explanation to the extent that it seeks to include composite contracts for purchase of units in a complex within the scope of taxable service is set aside."
4. It is thus submitted that since levy of Service Tax on construction of residential complex has been declared invalid, therefore, amount of Service Tax demanded by respondent-5 and paid by petitioner is liable to be refunded.
5. On perusal of record, we find that after holding that no Service Tax on construction of residential complex could be charged, Delhi High Court directed for refund of amount of Service Tax deposited by petitioners of that case.
6. In the present case, petitioners petitioners are refund of Service Tax for financial year 2016-17. They were not party in matters decided by Delhi High Court. Court also finds that present petitioners have approached this Court in November, 2019 for seeking benefit of judgment dated 03.06.2016 rendered by Delhi High Court. Benefit of a judgment, rendered long ago, cannot be extended after huge unexplained delay.
7. Delay and laches in filing present writ petition has not been explained. Consequently benefit of judgment dated 03.06.2016 rendered by Delhi High Court, in our view cannot be extended to petitioners of this case.
8. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T. 2007(4) SC 253, Court observed that after a long time writ petition should not have been entertained even if petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and jlaches were relevant factors for exercise of equitable jurisdiction. In M/s Lipton India Ltd. and others vs. Union jof India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequately explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities have also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors, 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479, Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sri Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material ...... Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
9. In view of above, we do not find any reason to interfere. Writ petition is dismissed.
Order Date :- 19.11.2019 Prajapati