2017 (3) TMI 1158 - AT - Service Tax

Imposition of penalty u/s 76, 77 and 78 of the Act - invocation of section 80 - Bonafide belief in non-payment of tax - Held that - non-payment of service tax in time cannot be construed as on account of willful default, but it was advised by their Chartered Accountant, after analyzing the law that service tax may not be applicable to the appellant as they were neither a corporate entity nor in the list of Register of Architects maintained u/s 23 of the Architects Act, 1972 - later being directed by the Department, in September 2002 the appellants discharged the entire service tax along with interest - there was a bona fide belief harboured by the appellant in not discharging the service tax during the relevant period - fit case for invocation of Section 80 of the FA, 1994 - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Applicability of service tax to architect services
- Failure to register and discharge service tax liability
- Invocation of Section 80 of the Finance Act, 1994
- Interpretation of legal provisions and precedents

Applicability of service tax to architect services:
The case involved the appellants providing architect services, which became taxable in 1998. The appellants failed to register and discharge their service tax liability until pointed out by the Department in 2002. The appellant's argument was that their Chartered Accountant advised them that service tax might not be applicable to them due to certain criteria. However, upon direction by the Department, the appellants discharged the entire service tax along with interest. The Tribunal noted that the advice by the Chartered Accountant was considered a reasonable cause for the failure to discharge the service tax and comply with the provisions of the Finance Act, 1994.

Failure to register and discharge service tax liability:
The appellants did not register with the Service Tax Department and did not discharge the appropriate service tax during the relevant period. Upon being pointed out by the Department, they paid the entire amount of service tax with interest. Subsequently, a show cause notice was issued for appropriation of the service tax paid, interest, and a proposal for penalty under various sections of the Finance Act, 1994. The demand was confirmed, and penalties were imposed on the appellants. The appellants contended that they had a bona fide belief, supported by their Chartered Accountant's opinion, that service tax was not applicable to them initially. The Tribunal found that the failure to pay service tax on time was not due to willful default but based on the advice received.

Invocation of Section 80 of the Finance Act, 1994:
The appellants requested the invocation of Section 80 of the Finance Act, 1994, for waiver of penalty, citing the advice from their Chartered Accountant as a reasonable cause for their failure to comply with the provisions of the Act. The Tribunal referred to a judgment of the Hon'ble Karnataka High Court, which highlighted that penalty imposition under the Act is not automatic and that if an assessee shows a reasonable cause for the failure, the authority has no power to impose a penalty. Upon perusal of the Chartered Accountant's opinion, the Tribunal found that there was a bona fide belief held by the appellants, justifying the invocation of Section 80. Consequently, the impugned order confirming the penalty was set aside, and the appeals were allowed with consequential relief as per law.

Interpretation of legal provisions and precedents:
The Tribunal considered the legal provisions of the Finance Act, 1994, and relevant precedents, particularly the judgment of the Hon'ble Karnataka High Court in a similar case. The Tribunal emphasized that penalty imposition requires the existence of specific ingredients under the Act and the absence of a reasonable cause for the failure. It was noted that Sections 76 and 78 of the Act are mutually exclusive, and if penalty is payable under one section, the other is not attracted. The Tribunal's decision to invoke Section 80 was based on the bona fide belief of the appellants, as evidenced by the Chartered Accountant's opinion, which justified the waiver of penalty in this case.