AI Structured Summary
Not yet generated for this judgment
Judgment
Justice Antony Dominic
Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. Ext.P5 is an order passed by the 1st respondent levying service tax on the petitioner for the year 2008-09. In that assessment, petitioner claimed the benefit of Exts.P2 and P2(a) by contending that their aggregate value of taxable service was less than Rs. 10 Lakhs and therefore, they are entitled to exemption from the levy.
However, holding that in the previous year namely 2007-08, petitioner''s aggregate value of taxable service was more than Rs. 10 Lakhs, the claim of the petitioner for exemption was rejected. It is now pointed out that against the assessment for the previous year namely 2007-08, petitioner has filed Ext.P6 appeal which is pending consideration of the appellate Commissioner. Therefore, petitioner says that if they succeed in Ext.P6 appeal levy as per Ext.P5 would automatically get invalidated. It is on that basis, the writ petition is filed.
Having heard both sides, I am of the view that if the petitioner was aggrieved by Ext.P5 also, the remedy available to them was to file appeal as they have done in the year 2007-08 by filing Ext.P6. Sine Ext.P5 was issued on 10.2.2012 and is stated to have been served on 20.2.2012, the time for filing the appeal and the permissible period for condonation of delay also has expired. Therefore, at this distance of time, it may not be possible for the petitioner to file such an appeal.
However, one aspect of the matter requires to be noticed in paragraph 15 of the writ petition. Petitioner has stated that they had entrusted Ext.P5 order with their accountant Sri. K.S. Deepak. It was on account of his default that the appeal happened to be not filed. If there is any substance in what the petitioner says, and I have no reason to disbelieve that averment, there is no reason why the petitioner should be deprived of an opportunity to file an appeal against Ext.P5. This is particularly for the reason that fate of the appeal to be filed will depend upon the fate of Ext.P6 also. In such circumstances, I direct that it will be open to the petitioner to file appeal against Ext.P5 within two weeks from today before the appellate Commissioner in which event, appellate Commissioner shall entertain the appeal and deal with the same along with Ext.P6 appeal, ignoring the delay that has occurred, in the meanwhile.
Writ petition is disposed of as above.