2016 (8) TMI 1027 - AT - Service Tax

Demand of tax, interest and penalty non-payment of service tax - service tax registration renting of immovable property - section 65(105)(zzzz) read with section 65(98) of the Finance Act, 1994 invocation of section 80 of the Finance Act, 1994 benefit of doubt Held that - Undoubtedly there was some doubt about the scope of taxability of renting of immovable property service. However, that dispute, though resolved in due course by Hon ble Supreme Court, did not preclude the payment of tax from others rendering the same service. Disputes raised to merely avoid or delay tax cannot be said to have originated from ambiguity or flawed mechanism benefit of doubt not available appeal dismissed decided against appellant.

Summary

Issues:
1. Liability for service tax on 'renting of immovable property' service.
2. Applicability of penalty under section 77 and 78 of the Finance Act, 1994.
3. Claim for lenient view based on past disputes and judicial decisions.
4. Invocation of section 80 of the Finance Act, 1994.
5. Justification for penalty imposition based on previous judicial decisions.

Detailed Analysis:
1. The appeal involved a case where the appellant was found liable for rendering 'renting of immovable property' service, which is taxable under section 65(105)(zzzz) read with section 65(98) of the Finance Act, 1994. The appellant failed to apply for service tax registration and discharge the service tax liability despite receiving consideration totaling &8377; 22,43,851 from 2007-08 to 2011-12. The original authority found the appellant liable for tax of &8377; 15,35,575 with interest and imposed penalties under sections 77 and 78 of the Finance Act, 1994.

2. The first appellate authority confirmed an amount of &8377; 8,33,736 after allowing exemptions for rent received from residential property and tax paid to local authorities. The appellant argued that there was a dispute regarding the taxability of 'renting of immovable property' service, which was resolved by a decision of the Hon'ble Supreme Court in a specific case. The appellant sought a lenient view citing a Tribunal decision in Euro Ceramics Ltd v. Commissioner of Central Excise, Rajkot.

3. The Authorized Representative contended that there was no prayer for invoking section 80 of the Finance Act, 1994, and no justification for it. Reference was made to a decision by the Hon'ble High Court of Karnataka in K Madhav Kamath Brother and Co v. The Asst. Commissioner of Central Excise, emphasizing that payment of service tax prior to a show cause notice does not exempt the assessee from penalty.

4. The Tribunal noted that while there was initial doubt about the taxability of 'renting of immovable property' service, the appellant's failure to acknowledge the tax liability, even as a dispute, resulted in non-reporting of consideration and delayed payment of tax. The Tribunal held that disputes raised to avoid or delay tax cannot be justified by ambiguity or flawed mechanisms, ultimately dismissing the appeal.

5. The judgment emphasized that despite past disputes and subsequent clarifications by the Hon'ble Supreme Court, the appellant's failure to recognize the tax liability led to non-payment and avoidance of tax obligations. Therefore, the claim for the benefit of doubt was deemed untenable, and the appeal was dismissed.