By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
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The High Court may entertain a writ petition in spite of alternate remedy being available, if it is filed for enforcement of fundamental right or actions/proceedings initiated, are in violation of the principles of natural justice or without jurisdiction.
Facts:
The Appellant preferred writ petition against the issuance of Show Cause Notice demanding service tax under “Business Auxiliary Service” (BAS) without mentioning the sub-clause of BAS under which service tax was alleged to be leviable and extended period of limitation was invoked on account of suppression of facts and contravention of provisions with intention to evade tax. Department took preliminary objection to the maintainability of petition since Appellant had an equally efficacious alternative remedy of adjudication before adjudicating authority.
Held:
It was held that normally High Court does not entertain a writ petition where an alternate remedy is available. However, if a writ petition is filed for enforcement of fundamental right or if it proves that actions/proceedings initiated are in violation of the principles of natural justice or without jurisdiction, High Court can intervene and pass appropriate orders. From the records, it was observed that facts of the case were known to the department from beginning and a mere failure to declare does not amount to willful suppression. The initial onus of providing materials to invoke section 73(1) of the Finance Act, 1994, is with the department. Thereafter, the burden shifts to the assessee. In the present case, department failed to discharge their initial onus. The Show Cause Notice even did not mention the relevant sub-Clause of BAS. Accordingly, the Show Cause Notice was held to be issued without jurisdiction and was set aside.
