2009 (1) TMI 29 - AT - Service Tax

Rate of tax was enhanced from 8% to 10% from 10.9.04 - Computer training and coaching centre - dispute relates to the amount collected by the appellants for their two units from the students prior to 10.9.04 when the rate of tax was 8% - there is no suppression of facts with intent to evade tax - appellant paid tax at the rate of 8% and filed return - demand of tax for the normal period of limitation is upheld - demand of tax for the extended period of limitation and penalties are set aside

Summary

Issues:
Dispute over tax rate for service provided before and after a tax rate increase. Applicability of penalties for alleged tax evasion.

Analysis:
The case involved a dispute regarding the tax rate applicable to the services provided by the appellants before and after a tax rate increase. The appellants, a computer training and coaching center, collected amounts from students before the tax rate increase from 8% to 10% with an education cess of 2% on 10.9.04. The appellants paid tax at the rate of 8% on the advance collections but rendered services after the new tax rate came into effect. The demand for the differential amount of tax at the increased rate was challenged by the appellants. The adjudicating authority and the Commissioner (Appeals) upheld the demand and imposed penalties.

The learned Advocate for the appellants argued that the tax was paid at the rate prevailing at the time of collection, and therefore, the demand for the differential tax was not sustainable. He also contended that the demand was partly barred by limitation and that penal provisions should not apply as the appellants had paid the duty and filed returns. On the other hand, the Departmental Representative for the Revenue supported the findings of the Commissioner (Appeals) and cited the insertion of an Explanation to Rule 6 of the Service Tax Rules, holding the appellants liable to pay tax at the rate prevailing at the time of service.

Upon careful consideration and review of the arguments, the Tribunal found that the decision of the Commissioner (Appeals) in a similar case was overruled by the Tribunal, establishing that tax payment is linked to the period of service provision. As the services were rendered after the tax rate increase, the demand for tax at the increased rate was deemed justified. However, the Tribunal agreed with the Advocate that there was no intent to evade tax, as evidenced by the timely payment of tax at the lower rate and filing of returns. Therefore, the penalties were deemed unwarranted.

Consequently, the Tribunal upheld the demand for tax within the normal period of limitation but set aside the demand for the extended period and the penalties. The adjudicating authority was directed to re-calculate the tax liability, considering the cum-tax benefit within the normal period of limitation. Both appeals were disposed of accordingly.