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Madras High CourtWP/15246/2013dismissed

J.Sudhakar, v. The Commissioner,

2016-11-07Honourable Mr Justice M.S. Ramesh3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.11.2016

CORAM

THE HONOURABLE MR.JUSTICE M.S.RAMESH W.P.No.15246 of 2013 & MP.No.1 of 2013 J.Sudhakar .. Petitioner

Versus

1.The Commissioner Coimbatore Municipal Corporation Coimbatore.

2.The Asst. Commissioner(West Zone) Coimbatore Municipal Corporation, Coimbatore.

.. Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Mandamus forbearing the respondent from collecting the service tax for the remaining lease period 2013-14 and 2014-15 or alternatively direct the respondent to permit the petitioner to collect the value of service tax by increasing the toll fees by a suitable order. For Petitioner : Mr.B.Nedunchezhiyan For R1 : Mr.J.Sathya Narayana Prasad For R2 : No appearance

O R D E R

Challenging the levy of Service Tax for the lease period 2013-14 and 2014-15 demanded by the respondent , the petitioner has filed this Writ Petition.

2. Mr.B.Nedunchezhiyan, learned counsel for the petitioner submits that the petitioner was a successfull bidder in the auction held on 10.05.2012 for collection of toll amount from the persons using the premises of "Anna Daily Vegetable Market", Coimbatore for the year 2012 -2015 for a total bid of Rs.42,20,000/- and the yearly lease amount from 01.06.2012 to 31.03.2013 was determined at Rs.35,16,670/-. Drawing my attention of the demand made in the year 2012, the learned counsel would submit that no Service Tax was imposed during the

demand made in the year 2012 and that the present demand made by the respondent for the period from 01.04.2013 to 31.03.2014 includes a sum of Rs.5,47,672/-towards the Service Tax. Since the respondent had not collected the Service Tax for the period 2012-13, they are precluded from collecting the same for the subsequent renewal period of 2013-14. On this ground this Writ Petition has been filed.

3. Mr.J.Sathya Narayana Prasad, learned counsel for the first respondent would submit that the service of the petitioner is a taxable service as defined under Rule 65(105) of the Service Tax Rules. Since, the Service Tax Rules of the Central Government came into force on 01.06.2007, the petitioner is liable to pay Service Tax. The learned counsel would also submit that the Commissioner of Customs, Central Excise and Service Tax, Coimbatore had issued a showcause notice to the Corporation demanding payment of Service Tax. Against which, the Corporation had preferred an appeal before the Commissioner of Customs and Central Excise and Service Tax, Coimbatore which was also rejected. Pursuant to that, the Corporation had decided to recover the Service Tax from all the allottees/licencees and had passed a Resolution on 27.02.2012 to collect Service Tax from all the licencees.

4. The learned counsel for the petitioner further submitted that the Service Tax for the period 2012-13 was not collected and that has been clearly explained by the respondents in the counter affidavit. The Corporation had resolved to collect Service Tax from its licencees pursuant to the resolution dated 27.02.2012 and in view of the same, the Service Tax was not collected from the petitioner from the period prior to 27.02.2012.

5. The learned counsel for the petitioner would further submit that pursuant to the present demand dated 01.04.2013, the petitioner had submitted a reply on 08.04.2013 stating that he is not liable to pay the service tax.

6. It is needless to point out that if any representation is given by the petitioner in this regard, it is the duty of the respondents to give a reply to the same particularly, when there is a considerable amount of tax due from the petitioner.

7. In view of the above there is no merit in the writ petition.

Accordingly, the writ petition is dismissed. Neverthless, the respondent is directed to take up the petitioner's reply dated 08.04.2013 and pass suitable orders in accordance with law within a period of four weeks from the date of receipt of copy of this order.

8.With the above observation, the writ petition is dismissed. No costs. Consequently, miscellaneous Petition is closed.

-s/d- Assistant Registrar True Copy Sub-Assistant Registrar rm To 1.The Commissioner Coimbatore Municipal Corporation Coimbatore.

2.The Asst. Commissioner(West Zone) Coimbatore Municipal Corporation, Coimbatore.

+1 cc to Mr.J.Sathya Narayana Prasad Advocate sr 63738/16 W.P.No.15246 of 2013 br(co) aa15/12/2016