M/S Parison Agrotech Private Limited v. Assistant Commissioner
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 10495 OF 2022 PETITIONER : M/S PARISON AGROTECH PRIVATE LIMITED, HAVING REGISTERED OFFICE AT 6/1183, KUNHIPARI BUILDING,,CHEROOTTY ROAD, KOZHIKODE - 673 032 AND FACTORY AT WEST HILL-CHUNGAM, KOZHIKODE - 673 005 REPRESENTED BY ITS DIRECTOR, N.K. KHALID BY ADVS. K.I.MAYANKUTTY MATHER R.JAIKRISHNA UTHARA ASOKAN RESPONDENTS : 1 ASSISTANT COMMISSIONER, OFFICE OF DEPUTY/ASSISTANT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, AUDIT CIRCLE -8, CENTRAL REVENUE BUILDING, MANANCHIRA P.O, KOZHIKODE, PIN - 673 001. 2 SUPERINTENDENT OF CENTRAL TAXES & CENTRAL EXCISE, OFFICE OF SUPERINTENDENT, CENTRAL TAX AND CENTRAL EXCISE, KOZHIKODE II RANGE, GST BHAVAN, MANANCHIRAP.O,KOZHIKODE PIN - 673 001. 3 COMMISSIONER (AUDIT), OFFICE OF THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, AUDIT COMMISSIONERATE, CENTRAL REVENUE BUILDING, I S PRESS ROAD P.O, KOCHI PIN - 682 018 BY ADV SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10495 OF 2022 2 BECHU KURIAN THOMAS, J …......….................................. W.P.(C) No.10495 of 2022 ….................................. Dated this the 28th day of March, 2022 JUDGMENT Petitioner challenges Ext.P2 order issued by the 1 st respondent for the periods October 2015 to June 2017 covering the financial years 2015-2016, 2016-2017 and 2017-2018. According to the petitioner, the proceedings issued as Ext.P2 are barred by limitation and that the impugned order is perverse warranting interference under Article 226 of the Constitution of India.
Petitioner is engaged in the manufacture of edible oil, crude oil, vanaspati etc. It had registration under service tax with respect to Goods Transport Agency Service under the Finance Act, 1994 [for short, 'the Act']. On 15.04.2021, a show cause notice was issued under Section 68(2) of the Act proposing to assess the petitioner for payments made to individual truck
WP(C) NO. 10495 OF 2022 3 owners for the return periods of October 2015 to June 2017. Though petitioner objected that the transactions were not exigible to tax and the proceedings were barred by limitation, by Ext.P2, the respondent carried out a best judgment assessment. The learned counsel for petitioner contended that Ext.P2 is perverse, liable to be interfered with under Article 226 of the Constitution of India.
Sri.P.R.Sreejith, the learned Standing Counsel, who took notice on behalf of the respondents, contended that the impugned order is appealable and that the contention raised by the petitioner requires appreciation of disputed facts and therefore, this Court ought not to interfere under Article 226 of the Constitution of India.
On a consideration of the various issues raised, I notice that the statutory authority has found in Ext.P2 that the assessee had deliberately concealed the fact of payment of freight taxable at their end and concluded that there was an intent to evade service tax and hence the extended period of limitation
WP(C) NO. 10495 OF 2022 4 can be invoked. The aforesaid consideration in the impugned order of assessment is a mixed question of law and fact and can be revisited only by an appreciation of the various disputed facts. Section 73 provides for a time limit of thirty months to serve notice when there is a short levy or otherwise of service tax. This period will not apply if, there is fraud, collusion, wilful misstatement, suppression of facts, in which case the period will extend to five years. In the impugned order, the assessing officer had concluded that there was suppression and hence the period of thirty months will not apply.
The above noted conclusion is based on an appreciation of disputed facts. Therefore, in the light of the disputed questions of fact, which are clearly evident from the impugned order of assessment, I am of the view that this is not a fit case to interfere in exercise under Article 226 of the Constitution of India. The writ petition is liable to be dismissed.
However, petitioner's right to pursue its statutory remedy shall stand reserved and all contentions raised by the petitioner in
WP(C) NO. 10495 OF 2022 5 the writ petition shall be open for consideration by the appellate authority and the same shall be decided untrammelled by any observation in this judgment. The writ petition is dismissed. BECHU KURIAN THOMAS JUDGE AMV/28/03//2022
WP(C) NO. 10495 OF 2022 6 APPENDIX OF WP(C) 10495/2022 PETITIONER'S EXHIBITS : Exhibit P1OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 15.4.2021. Exhibit P2OF THE ORDER-IN-ORIGINAL ISSUED BY THE 1ST RESPONDENT DATED 28.12.2021. RESPONDENTS EXHIBITS : NIL
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.