2016 (12) TMI 793 - AT - Service Tax

Taxability of rent received - cum-duty benefit for calculation of service tax - Held that - the appellant have not charged Service Tax from the receivers of service being renting of immovable property - we are satisfied that it is a fit case for allowing the cum-duty benefit for calculation of Service Tax and accordingly, we allow this ground. Under the facts and circumstances, we also hold that there is no contumacious conduct or suppression of facts or deliberate default in compliance with the provisions of the Service Tax Act and Rules on the part of the appellant and accordingly, we set aside the penalty under section 76, 77 and 78 of the Act. So far, late fee under Section 70 read with Rule 7 is concerned. We modify the same holding that penalty under this Section 70 read with Rule 7 would be payable for default after 27th May, 2011, when Revenue initiated enquiry. Accordingly, the appeal is allowed in part, and remanded to the adjudicating Authority for re-calculation of tax on cum-duty basis - appeal allowed by way of remand.

Summary

Issues:
Delay in filing the appeal for condonation - Cum-duty benefit for calculation of Service Tax - Contumacious conduct and penalty under various sections of the Act - Late fee under Section 70 read with Rule 7.

Analysis:
The appellant, a statutory body, filed an appeal beyond the limitation period due to official procedures causing delay. The appellant deposited the full amount of Service Tax before filing the appeal, seeking condonation of the delay to prevent irreparable loss. The Revenue opposed the prayer for condonation, but the Tribunal found it just to condone the delay in the interest of justice.

The appeal, filed in 2014, included a request for cum-duty benefit for calculating Service Tax and challenged the taxability of rent received, invoking the extended period of limitation. The appellant did not charge Service Tax from service receivers for renting immovable property. The appellant argued lack of knowledge and instructions from the Administrative Authority led to non-compliance with Service Tax requirements. The demand was based on information provided to the Revenue, with no deliberate default or contumacious conduct. The Tribunal agreed to allow the cum-duty benefit for Service Tax calculation and set aside penalties under sections 76, 77, and 78 of the Act. The late fee under Section 70 read with Rule 7 was modified, making it payable for defaults after 27th May 2011 when the Revenue initiated an inquiry. The appeal was partially allowed, remanding it to the adjudicating Authority for re-calculation of tax on a cum-duty basis, with the stay petition also disposed of accordingly.