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2013 (11) TMI 794 - AT - Service TaxDemand of service tax - Renting of immovable property - Sale of space or time for advertisement - Club or Association Service - Amount received from BCCI as subsidy for various activities - Business support service - Penalty u/s 76, 77, 78 - Difference of opinion - matter referred to larger bench on the following issues i) Whether the appellant, M/s. Vidarbha Cricket Association is liable to service tax on the services rendered to its members under Club or Association Service as held by the Member (Technical) on the ground that the appellant is not rendering any public service nor are they a charitable organization and the provisions of Income Tax Act, 1961 are not pari materia with Chapter V of the Finance Act, 1994 - OR - The appellant, M/s. Vidarbha Cricket Association is not liable to service tax under Club or Association Service as held by Member (Judicial) on the ground that the appellant is treated as a charitable organization under the Income Tax act, 1961 ii) Whether the appellant is liable to penalties under Sections 76, 77 and 78 of the Finance Act, 1994 in cases where the service tax demands have been confirmed invoking the extended period of time as held by Member (Technical) - OR - The appellant is not liable to penalty under the above provisions on the ground that there is no contumacious conduct on the part of the appellant and the disputes had arisen as a matter of interpretation of the tax provisions, as held by Member (Judicial). iii) Is there any inherent contradiction in the waiver of penalty by Member (Judicial) inasmuch as he has upheld the confirmation of demand of service tax invoking the extended period of time and the same pre-supposes suppression of facts on the part of the appellant whereas while waiving of the penalty, the learned Member (Judicial) has held that there is no contumacious conduct on the part of the appellant. Further for imposition of penalty under Sections 76 and 77 no mens rea is required and mere contravention of the statutory provisions would suffice. Referred to larger bench.
Issues Involved:
1. Service Tax Liability under various categories. 2. Classification under "Club or Association Service". 3. Classification under "Sale of Space or Time for Advertisement". 4. Classification under "Mandap Keeper Services". 5. Classification under "Renting of Immovable Property". 6. Classification under "Business Support Services". 7. Invocation of Extended Period for Demand. 8. Imposition of Penalties under Sections 76, 77, and 78 of the Finance Act, 1994. Issue-Wise Analysis: 1. Service Tax Liability under Various Categories: - The appellant was found to have provided several taxable services without discharging service tax liability. These services included running a club, renting advertising space, renting premises for functions, leasing shops, and providing infrastructure to BCCI. 2. Classification under "Club or Association Service": - The appellant collected membership fees amounting to Rs.12,64,08,595/- from 2005-06 to 2009-10, attracting a service tax liability of Rs.1,52,48,932/-. The service was classified under Club or Association Service as per Section 65 (25a) read with Section 65(105)(zzze) of the Finance Act, 1994. The appellant argued that they were engaged in public service and were a charitable organization, thus exempt from service tax. However, the tribunal held that the appellant did not qualify for the exclusion clause as their activities did not constitute public service nor were they recognized as a charitable organization under the Finance Act, 1994. 3. Classification under "Sale of Space or Time for Advertisement": - The appellant received Rs.7,91,20,000/- from 2006-07 to 2009-10 for granting advertising rights, attracting a service tax liability of Rs.31,26,600/-. The appellant contended that they were not liable as they merely provided space to another company, which then sold the advertising space. The tribunal held that the appellant's activity fell within the scope of "sale of space or time for advertisement" as defined in Section 65(105)(zzzm) and thus was liable for service tax. 4. Classification under "Mandap Keeper Services": - The appellant admitted to the service tax liability for renting premises for functions, collecting Rs.4,71,500/- from 2005-06 to 2009-10, with a tax liability of Rs.54,933/-. The tribunal upheld this demand. 5. Classification under "Renting of Immovable Property": - The appellant collected Rs.30,11,323/- from 2007-08 to 2009-10 for renting shops, with a tax liability of Rs.3,58,725/-. The tribunal upheld the demand, referencing the Bombay High Court's decision validating the levy of service tax on renting of immovable property. 6. Classification under "Business Support Services": - The appellant received Rs.123,05,20,263/- from BCCI from 2006-07 to 2009-10, attracting a service tax liability of Rs.14,57,72,251/-. The appellant argued that these were subsidies and not payments for services rendered. The tribunal held that the activities did not constitute business support services as they were not related to business or commerce, referencing the Supreme Court's decision in the case of Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal. 7. Invocation of Extended Period for Demand: - The tribunal upheld the invocation of the extended period, stating that the appellant had suppressed facts with the intent to evade tax. The appellant's argument of bona fide belief was rejected as they did not seek clarification from authorities or obtain legal opinions. 8. Imposition of Penalties under Sections 76, 77, and 78 of the Finance Act, 1994: - The tribunal upheld penalties under Sections 76 and 77 for default in payment of tax and non-compliance with statutory provisions. Penalty under Section 78 was upheld except for renting of immovable property due to the pending challenge in the Supreme Court. Separate Judgment by Member (Judicial): - Member (Judicial) differed on the classification under "Club or Association Service," holding that the appellant was a charitable organization under the Income Tax Act, thus not liable for service tax. Additionally, Member (Judicial) waived penalties, citing the honorary nature of the appellant's office bearers and lack of contumacious conduct. Conclusion: - The tribunal confirmed service tax demands under Mandap Keeper Services, Club and Association Service, Renting of Immovable Property, and Sale of Space for Advertisement. The demand under Business Support Services was set aside. Penalties under Sections 76 and 77 were upheld, while penalty under Section 78 was waived for renting of immovable property. The case was referred to the President for resolving the difference of opinion on the charitable status of the appellant and the imposition of penalties.
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