2015 (1) TMI 644 - AT - Service Tax

Waiver of pre deposit - Renting of Immovable property - Held that - Show cause notice was issued to the notices Shri G. Soundarapandian and G. Kanagavel, and both of them claimed the exemption separately. Both the applicants entered into an agreement with M/s. Adlabs Films Ltd. for screening of the cinematic film. Prima facie, we find that the demand was not raised on M/s. Ganesh Theatre and both the applicants received the amount separately by cheques. We find that the Tribunal on the identical situation in the case of Vamini Nitinkumar Shah (2013 (9) TMI 68 - CESTAT AHMEDABAD), granted unconditional stay - In view of the above discussion, following the Tribunal s decision, we waive predeposit of tax along with interest and penalty and stay its recovery till the disposal of the appeals - Stay granted.

Summary

Issues: Tax demand on renting of immovable property, threshold exemption under Notification No. 8/2008, ownership of property, service tax liability, joint ownership, waiver of predeposit.

Analysis:
1. Tax Demand on Renting of Immovable Property: The case involved a tax demand of &8377; 4,65,500 on two brothers who jointly owned a theatre complex rented out to M/s. Adlabs Films Ltd. The show cause notice proposed the tax demand under the category of 'Renting of Immovable Property' for the period from July 2007 to March 2011. The adjudicating authority and Commissioner (Appeals) upheld the demand.

2. Threshold Exemption under Notification No. 8/2008: The applicants claimed exemption under Notification No. 8/2008, arguing that they were within the threshold limit of exemption. The Tribunal considered the exemption notification and the case of Vamini Nitinkumar Shah Vs. CST, Ahmedabad - 2013 (31) STR 239 (Tri.-Ahmd.) where a similar situation was granted unconditional stay based on the exemption provisions.

3. Ownership of Property and Service Tax Liability: The Revenue contended that the tax was correctly raised on the renting of the property jointly owned by the brothers under an unregistered partnership agreement. Municipal and local taxes, as well as entertainment tax, were also levied on the property. However, the Tribunal noted that the demand was not raised on the property itself but on the brothers individually, who received the rent separately by cheques.

4. Joint Ownership and Waiver of Predeposit: After considering both sides, the Tribunal found that the brothers claimed the exemption separately and received the rent individually. Following the decision in the case of Vamini Nitinkumar Shah, the Tribunal waived the predeposit of tax, interest, and penalty, staying the recovery until the disposal of the appeals. The Tribunal emphasized that individually renting out the property made the aggregate value fall below the threshold limit, justifying the waiver.

In conclusion, the Tribunal granted relief to the applicants by waiving the predeposit of tax, interest, and penalty, and staying the recovery based on the exemption provisions and the specific rental arrangement where the brothers individually rented out the property.