Al Salama Eye Research Foundation vs. Union Of INDIA - Kerala High Court, 14 September 2021

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 WP(C) NO. 17408 OF 2021 PETITIONER: M/S. AL SALAMA EYE RESEARCH FOUNDATION THEKKEKOOT BUILDINGS, PALAKKAD ROAD, MALAPPURAM-679 322 REPRESENTED BY ITS CHAIRMAN, SAMSUDEEN A. BY ADV.HARISANKAR V. MENON ADV.MEERA V.MENON ADV.R.SREEJITH ADV.K.KRISHNA RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, SHASTRI BHAVAN, NEW DELHI-110 001. 2 UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002. 3 INDIRA GANDHI NATIONAL OPEN UNIVERSITY REPRESENTED BY ITS VICE CHANCELLOR, MAIDAN GARHI, NEW DELHI-110 068. W.P.(C) No.17408/21 -:2:- 4 BHARATHIAR UNIVERSITY COIMBATORE-641 046, REPRESENTED BY ITS REGISTRAR. 5 CENTRE FOR PARTICIPATORY AND ONLINE PROGRAMMES SCHOOL OF DISTANCE EDUCATION, BHARATIAR UNIVERSITY, COIMBATORE-641 046, REPRESENTED BY ITS DIRECTOR. 6 THE COMMISSIONER CENTRAL GOODS AND SERVICES TAX AND CENTRAL EXCISE, CR BUILDINGS, MANNANCHIRA, KOZHIKODE-673 001. BY ADVS. SRI.P.VIJAYAKUMAR SRI.S.KRISHNAMOORTHY, CGC SRI.MOHANAKANNAN K., SC, IGNOU SRI.M.S.AMAL DHARSAN SRI.SREELAL N. WARRIER, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.17408/21 -:3:- BECHU KURIAN THOMAS, J. -------------------------------------- W.P.(C) No.17408 of 2021 -------------------------------------- Dated this the 14th day of September, 2021

JUDGMENT Petitioner challenges Ext.P9 order of assessment carried out under section 73(2) and imposition of penalty under section 78(1) of the Finance Act, 1994 (for short ‘the Act’).

Petitioner is a charitable trust conducting several educational courses including B.Sc Optometry. It claimed exemption from payment of service tax as an educational institution. However, the benefit of exemption was refused by the order impugned on the ground that the courses offered by the petitioner are in Kerala, thereby violating territorial limits. Reliance is placed by the assessing officer on notifications issued by the UGC dated 17.06.2013 and public notice dated 27.06.2013. 3. I have heard Adv. Harisankar V.Menon, learned counsel for the petitioner, Adv. P.Vijayakumar learned Assistant Solicitor General of India on behalf of the 1st respondent, Adv. Krishna Moorthy, learned Central Government Counsel on behalf of 2nd respondent as well as Adv. Sreelal Warrier, learned Standing Counsel on behalf of 6th respondent.

Even though learned counsel for the petitioner attempted to persuade this Court that the finding of the assessing officer is inherently incorrect especially in view of the decision of the Madras High Court in Ext.P4 judgment in W.P. No.30039 of 2012, I am of the view that since petitioner has an effective alternative remedy before the Appellate Tribunal under section 86 of the Act, this writ petition need not be entertained.

Even in the recent judgment of the Supreme Court in Assistant Commissioner of State Tax and Others v. M/s.Commercial Steel Ltd. (C.A. No.5121 of 2021) it was held that the existence of an alternate remedy though not a bar to the maintainability of a writ petition under Article 226 of the Constitution of India, still, a writ petition must be entertained only in exceptional circumstances when there is a breach of fundamental rights or violation of the principles of natural justice or if the order is passed in excess of juri iction or when there is a challenge to the vires of the statute.

On an appreciation of the facts and circumstances arising in the case and the submissions of the learned counsel for the petitioner, I find that none of the exceptions mentioned above is made out in the instant case. There was no violation of fundamental rights or violation of the principles of natural justice nor was the order issued in excess of juri iction. In the above view of the matter, this writ petition merits dismissal solely on the ground of alternative remedy. Reserving the liberty of the writ petitioner to pursue its appellate remedy as provided under the statute, this writ petition stands dismissed. BECHU KURIAN THOMAS JUDGE vps APPENDIX OF WP(C) 17408/2021 PETITIONER'S/S' EXHIBITS EXHIBIT P1 COPY OF RENEWAL OF MOU WAS EXECUTED BETWEEN THE PETITIONER AND THE 5TH RESPONDENT DATED 12.5.2016. EXHIBIT P2 COPY OF NOTIFICATION NO.1-4/2013 (CPP- II), ISSUED BY UNIVERSITY GRANTS COMMISSION, NEW DELHI DATED 17.6.2013. EXHIBIT P3 COPY OF PUBLIC NOTICE ISSUED BY THE 2ND RESPONDENT DATED 27.6.2013. EXHIBIT P4 COPY OF JUDGMENT IN WP NO.30039/2012 OF MADRAS HIGH COURT DATED 12.3.2013. EXHIBIT P5 COPY CIRCULAR NO.BU/CPOP, CPP/CENTRES- APPROVAL WITHDRAWN/2018 ISSUED BY THE 4TH RESPONDENT DATED 15.5.2018. EXHIBIT P6 COPY OF REPLY ISSUED BY THE 5TH RESPONDENT DATED 22.9.2020. EXHIBIT P7 COPY OF SHOW CAUSE NOTICE ISSUED BY THE 6TH RESPONDENT DATED 16.10.2019. EXHIBIT P8 COPY OF REPLY FILD BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 30.11.2020. EXHIBIT P9 COPY OF ORDER ISSUED BY THE IST RESPONDENT DATED 31.3.2021. EXHIBIT P10 COPY OF JUDGMENT IN WPC NO.04/2013 OF THE HIGH COURT OF SIKKIM.