2019 (2) TMI 1928 - AT - Service Tax

Levy of penalty u/s 78 of FA - case of appellant is that instead of adjusting the amount of tax paid earlier with the fresh calculation of tax which paid on fresh deposit they have mistakenly cross receipts with the earlier cross receipts resulting into some differential tax label due to changing of tax - no suppression of facts or evasion of tax - HELD THAT - There is only venial breach of the provision of Rule 6 (3) of Service Tax Rules, and there is no mis-statement/suppression of facts on the part of the appellant. Further, it is found that they have deposited service tax regularly and filed returns in the ordinary course of business. The differential tax have arisen due to lack of understanding of the rules and law. The penalty under Section 78 of the Act is seta side - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Applicability of Rule 6(3) of Service Tax Rules, 1994 for adjusting tax amounts.
2. Validity of the demand for service tax, interest, and penalty.
3. Adjudication of penalty under Section 78 of the Act.

Analysis:
1. The appellant, a developer/builder of residential flats, received bookings from prospective buyers during construction, some of whom later sought refunds. The appellant adjusted deposits from new buyers against taxable amounts previously subjected to tax on receipt basis. A show cause notice was issued demanding service tax for the period 2011-2012 to 2015-2016, with a proposed appropriation of already deposited amount and penalty under Section 78. The appellant contested the notice, and the adjudicated amount was confirmed with interest and penalty. The appellant appealed before the Commissioner (Appeals).

2. The appellant's counsel argued that the adjustment of tax paid earlier with fresh calculations on new deposits was permissible under Rule 6(3) of the Service Tax Rules, 1994. Any differential tax was due to an error in cross-receipts, not suppression or misrepresentation. The appellant had paid the differential tax, as evidenced by records and challan copies. The counsel requested waiver of the penalty under Section 78, considering the circumstances.

3. The Revenue's representative relied on the impugned order. After considering the contentions and facts, the Member (Judicial) found a minor breach of Rule 6(3) due to a lack of understanding, with no intentional misstatement or suppression. The appellant had regularly deposited service tax and filed returns. Consequently, the penalty under Section 78 was set aside, and the appeal was allowed, granting the appellant consequential relief as per the law.

In conclusion, the judgment addressed the adjustment of tax amounts under Rule 6(3), the validity of the demand for service tax, interest, and penalty, and the adjudication of penalty under Section 78. The appellant's appeal was successful, with the penalty under Section 78 being waived due to a minor breach and lack of intentional misrepresentation.