2008 (10) TMI 78 - AT - Service Tax

Chartered accountant non-payment of tax - appellant was aware of the outcome of the writ petition filed by the Association of Chartered Accountants challenging levy of a new tax - argument of appellant that he had not started paying service tax since he continued to believe levy as not lawful after dismissal of writ petition cannot be accepted invocability of larger period is required to be examined case remanded to re-quantify the demand as per the amended provisions (section 73)

Summary

Issues:
Appeal against demand of service tax by a chartered accountant for services rendered without registration or payment of tax, imposition of penalties, invocation of larger period under Section 73 of the Act, plea of limitation, remand for re-quantification of demand.

Analysis:
1. The appeal was filed by a chartered accountant against the demand of service tax, interest, and penalties imposed by the Commissioner (Appeals) for services rendered without registration or payment of tax. The appellant admitted to not complying with statutory formalities and not paying the tax legitimately due, leading to the demand. The Commissioner (A) found the penalties justified due to the appellant's persistent non-compliance even after the dismissal of a writ petition challenging the tax's constitutional validity.

2. The appellant argued that the demand invoking a larger period under Section 73 of the Act was not valid as mere failure to declare services rendered did not amount to suppression of facts. The Show Cause Notice proposing recovery from a past date was issued without the appellant's knowledge of the writ petition's dismissal. The appellant claimed a belief in the tax's non-leviability based on the writ petition's claims. The argument of limitation was supported by citing relevant case law.

3. The appellate Tribunal considered both sides' submissions, noting the appellant's admission of rendering taxable services without paying tax. The appellant's belief in the tax's unlawfulness due to a dismissed writ petition was highlighted. The Tribunal referenced previous decisions supporting the plea of limitation and emphasized the relevance of the provisions of Section 73 at the time of invocation.

4. The Tribunal acknowledged the appellant's professional obligations to be informed about tax laws and case law. While agreeing that the appellant should have been aware of the writ petition's outcome, the Tribunal found the argument of non-payment due to belief in the writ's claims naive. The demand was to be re-quantified with reference to the date of the Show Cause Notice, considering the department's awareness of the tax liability during the investigation.

5. The Tribunal remanded the matter for a fresh decision on the appellant's liability, emphasizing the need for an effective hearing. The appeal was allowed by way of remand, ensuring a fair reconsideration of the service tax demand, interest, and penalties.

This detailed analysis covers the issues involved in the legal judgment comprehensively, addressing the arguments presented by both parties and the Tribunal's decision to remand the case for further consideration.