2017 (5) TMI 1084 - AT - Service Tax

Penalty u/s 76 of FA - appellant collected the tax but could not deposit the same to Revenue - appellant pleaded that due to the accident of the proprietor in 2007-08 though they have collected the Service Tax but could not deposit with the Govt - Held that - Though they have been registered with the Dept., they have failed to file necessary Returns nor informed the Dept., about their inability to deposit Service Tax though collected from customers. Therefore, their explanation that they are innocent and their approach is bonafide cannot be acceptable to a man of ordinary prudence - However, confirmation of penalty u/s 76 as well u/s 78 in the case of appellant is bad in law - decided partly in favor of appellant.

Summary

Issues:
Appeals against imposition of penalties under Sections 76 and 78 of the Finance Act 1994 for failure to deposit collected Service Tax; Argument for waiver of show cause notice under Sec. 73(c) due to proprietor's accident; Interpretation of penalty imposition in light of Gujarat High Court judgment.

Analysis:
The appeals were filed against orders imposing penalties under Sections 76 and 78 of the Finance Act 1994 for the failure to deposit collected Service Tax. The appellants, two agencies controlled by a common proprietor, provided services but did not pay the tax to the government despite collecting it from customers. The appellants argued that due to the proprietor's accident in 2007-08, they could not deposit the tax on time. However, they paid a portion of the dues upon being informed by the department. The Chartered Accountant for the appellants contended that a waiver of show cause notice under Sec. 73(c) should apply. The Revenue argued that the penalties were rightly imposed as the appellants failed to deposit the tax and did not file returns or inform the department about tax collection.

The Tribunal found that the explanation provided by the appellants for not depositing the tax was lacking in logic and common sense. Despite being registered with the department, they did not fulfill their tax obligations or communicate their difficulties in depositing the tax. The Tribunal held that the imposition and confirmation of penalties by the Adjudication Authority and the Commissioner of Appeals were justified in one case. However, the penalty imposition under Sec. 76 and 78 for one of the agencies was deemed unlawful based on a judgment of the Gujarat High Court. As a result, one appeal was rejected, while the other was partly allowed by setting aside the penalty under Sec. 76.

In conclusion, the Tribunal upheld the penalties in one case but found the penalty imposition under Sec. 76 and 78 to be invalid in the other case based on a relevant judicial precedent. The judgment emphasized the importance of fulfilling tax obligations and communicating any difficulties faced in meeting those obligations to the tax authorities.