Indian Institute Of Management ... vs The Government Of India
2021 Latest Caselaw 21282 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                    WP(C) NO. 20819 OF 2021
PETITIONER :

          INDIAN INSTITUTE OF MANAGEMENT STUDIES,
          JOS BROTHERS BUILDING,
          JOS JUNCTION, MG ROAD, KOCHI-682016,
          REPRESENTED BY ITS MANAGING DIRECTOR,
          S.ASOK KUMAR, S/O SREEDHARA KURUP,
          RESIDING AT ASHOK BHAVAN, PULLAR DESAM ROAD,
          PALLURUTHY, COCHIN-682006.

          BY ADV R.LEELA(K/1025/2001)



RESPONDENT :

          THE GOVERNMENT OF INDIA,
          REPRESENTED BY THE SECRETARY,
          MINISTRY OF FINANCE,
          DEPARTMENT OF REVENUE,
          CENTRAL BOARD OF EXCISE AND CUSTOMS,
          CENTRAL EXCISE WING,
          NEW DELHI-110002.

          BY ADV.P.G.JAYASHANKER, CGSC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 20819 OF 2021
                                    2



                   BECHU KURIAN THOMAS, J.
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=
                    W.P.(C).No.20819 of 2021
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=
                Dated this the 29th day of October, 2021


                                 JUDGMENT

Petitioner challenges Ext.P5 order in original, issued under

Section 73(2) of the Finance Act, 1994 (for short, 'the Act) imposing

service tax on the petitioner under the category "commercial training

of coaching services". Consequential interest and penalty have also

been imposed upon the petitioner as per the provisions of Sections

75, 76 and 77 of the Act.

2. Petitioner claims to be an approved study center of two

Universities and claims to be engaged in conducting courses for

students. The courses offered by the petitioner are alleged to be

approved by the Mahatma Gandhi University, Kottayam and the

Bharathiar University, Coimbatore in Tamil Nadu. Petitioner contends

that courses conducted by the petitioner falls under the exempted

category of 'vocational training' apart from the value of services

falling well below the exempted limit. In view of the reasons

mentioned above, petitioner urges that levy of service tax, by the

impugned order, was without jurisdiction and hence rather than WP(C) NO. 20819 OF 2021

relegating the petitioner to the statutory remedy, this Court ought to

interfere under Article 226 of the Constitution of India.

3. Adv.Leela, the learned counsel for the petitioner relied

upon the decision in Malappuram District Parallel College

Association and Others v. Union of India (UOI) and Others

[(2005) 199 CTR (Ker) 453], to canvass that distance education

programmes and parallel colleges were exempted from payment of

service tax. The learned counsel further submitted that, on earlier

occasions, as can be seen from Ext.P1 and Ext.P2, proceedings

initiated against the petitioner were either set aside in appeal or

dropped by the assessing officer themselves, after finding that

petitioner was not liable to pay service tax. According to the

petitioner, the very same situation prevails even for the year under

consideration and hence, instead of petitioner undergoing the travails

of the statutory remedy, this Court can interfere under Article 226 of

the Constitution of India.

4. Adv.P.G.Jayashankar, the learned Central Government

Standing Counsel argued that reference to the earlier decisions,

especially those, that were rendered prior to 01.07.2012, had no

applicability, since, by virtue of the amendment of 2012, a negative

list was brought in as per Section 66D of the Act. It was further WP(C) NO. 20819 OF 2021

submitted that, the definition of 'auxiliary educational services' was

omitted by the amendment of 2012 and service tax was imposed on

all services other than those in the negative list in Section 66D of the

Act. It was contended that the departure from the earlier position of

law was considered by the assessing authority in the order

impugned and after finding that petitioner was not recognized by the

Government agencies as required under the provisions of the Act, it

was held that petitioner was not entitled to the benefit of exemption

under the Service Tax Act. It was further submitted that in any

event, the remedy under the statutory provisions are not foreclosed

to the petitioner and the contentions raised in this writ petition can

efficaciously be raised before the appellate authorities.

5. I have considered the rival contentions.

6. A perusal of the order impugned shows that the very

same contentions now argued before this Court, had already been

raised by the petitioner before the assessing authority. After

appreciating the various provisions of law, a decision has been

rendered by the assessing authority. Several factual and even

disputed questions of fact and law have also been analyzed by the

assessing authority. In order to arrive at the nature of service

rendered by the petitioner, an appreciation of disputed facts is WP(C) NO. 20819 OF 2021

undoubtedly required. In such an instance, it is not open for this

Court to consider such disputed questions of fact in exercise of its

jurisdiction under Article 226 of the Constitution of India.

7. Even otherwise, petitioner will not be put to any

prejudice, if the appellate remedies are pursued. In fact, petitioner

itself had obtained relief in earlier years, while pursuing the appellate

remedies and such a course of action cannot be termed as a travail.

8. Though petitioner has styled the relief claimed in the

writ petition as a "writ of mandamus", it is in effect, a writ of

certiorari that ought to have been sought for. Keeping aside the

aforesaid technical error, this Court treats this writ petition as

claiming the relief of a writ of certiorari.

9. However, it is settled that, in matters of taxation,

prerogative writs of certiorari will not be issued unless the order

impugned was (i) on the face of it or on undisputed facts issued

without jurisdiction, or (ii) where the law giving jurisdiction to the

authority is unconstitutional, or (iii) where the order impugned

violates the principles of natural justice, or (iv) where the

assessment is not based on any material or evidence, or (v) is in

breach of fundamental rights.

10. The above principles were restated even recently in WP(C) NO. 20819 OF 2021

the decision in Assistant Commissioner of State Tax v.

Commercial Steel Ltd. [2021 (52) G.S.T.L.385].

11. When the legislature has entrusted the task of

resolving the dispute through the statutory machinery, this Court

ought to be loath to stretch its judicial arm, to grab the subject

matter. Due to the nature of the issues raised in the instant case,

petitioner ought to be pursuing its statutory remedies.

In view of the above consideration, I find that this is not a

fit case for interfering under Article 226 of the Constitution of India.

Thus, while dismissing this writ petition, I reserve the liberty of the

petitioner to pursue the statutory remedies in accordance with law.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM WP(C) NO. 20819 OF 2021

APPENDIX OF WP(C) 20819/2021

PETITIONER'S EXHIBITS :

Exhibit P1 THE TRUE COPY OF THE APPEAL ORDER IN APPEAL NO.506/2014-ST DATED 25.06.2014.

Exhibit P2 THE TRUE COPY OF THE ORDER IN ORIGINAL NO.65 & 66/2014/ST ISSUED FROM THE OFFICE OF THE COCHIN COMMISSIONERATE DATED 01.05.2014.

Exhibit P3 THE TRUE COPY OF THE ORDER IN APPEAL NO.14/ST/CHN/2016-17 (D) DATED 28.02.2018.

Exhibit P4 THE TRUE COPY OF THE CIRCULAR NO.F.NO.201/01/2014-CX.6 DATED 26.06.2014.

Exhibit P5 THE TRUE COPY OF THE ORDER IN ORIGINAL NO.

9 AND 10/2021/ST DATED 25.02.2021.

Exhibit P6          THE TRUE COPY OF THE NOTIFICATION
                    NO.33/2011 SERVICE TAX DATED 25.04.2011.