2017 (1) TMI 1503 - HC - Service Tax

Penalties u/s 76, 77 and 78 - mandap keeper service - amenities furnished at the Mandap - Held that - neither the Commissioner (Appeals) nor the CESTAT record a finding to the effect that there was suppression with the intent of evading tax. A bonafide omission will not lead to a conclusion of suppression under Section 78 of the Act. It is a settled proposition that intention of the assessee to suppress must be established in the absence of which no penalty will lie under under Section 78 of the Act - penalty not levied - appeal allowed - decided in favor of appellant.

Summary

Issues:
Confirmation of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
The judgment challenges the confirmation of penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The case involves an assessee who is a proprietorship registered as a Mandap Keeper under the Act. A show cause notice was issued due to the non-offering of receipts related to amenities for taxation. The notice proposed the levy of service tax, interest, and penalties under the mentioned sections for contravention of Section 68, suppression of facts, and non-declaration of the correct value of service tax to evade payment. An order-in-original confirmed the levy of service tax but dropped the proposal for penalties. The assessing authority considered the assessee's age, medical condition, immediate payment of differential tax, and full cooperation during proceedings, leading to the dropping of penalty proceedings.

The Commissioner of Service Tax revised the order, believing the penalty should have been confirmed. The CESTAT upheld the revision, prompting the appeal. The assessing authority's decision to drop the penalty was found to be well-founded, considering the show cause notice, explanations by the assessee, and relevant case-law. The CESTAT's confirmation of the revision was based on the inclusion of charges for amenities for taxation. However, neither the Commissioner nor the CESTAT established suppression with intent to evade tax. It was emphasized that a bona fide omission does not amount to suppression under Section 78 of the Act. The judgment highlighted the requirement to prove the assessee's intent to suppress for a penalty under Section 78.

In conclusion, the appeal was allowed, overturning the CESTAT's decision and canceling the penalty levy. The judgment focused on the necessity to establish the assessee's intention to suppress for penalties under Section 78 of the Finance Act, 1994.