2018 (4) TMI 1505 - AT - Service Tax

Renting of Immovable Property Services - cum tax benefit - case of appellant is that they have not collected tax separately along with the renting charges - Held that - this plea is a reasonable one and the benefit should be extended to the assessee - matter remanded to adjudicating authority who shall rework the demand giving benefit of cum tax to the assessee. Penalties u/s 78 - Held that - The assessee being a local self-government running for the welfare of the public cannot be said to have any intention of suppressing facts to evade payment of service tax - penalty has to be set aside. Part appeal allowed by way of remand - partly decided against Revenue.

Summary

Issues:
1. Failure to register for service tax on renting out immovable property.
2. Imposition of penalties under various sections of the Finance Act, 1994.
3. Dispute regarding granting cum tax benefit to the assessee.
4. Appeal against penalties set aside by the Commissioner (Appeals).

Analysis:
1. The case involves the assessee engaged in renting out immovable property for commercial purposes without registering for service tax. Show cause notices were issued for demanding service tax, interest, and penalties. The original authority confirmed the demand and penalties under different sections of the Finance Act, 1994. The Commissioner (Appeals) upheld the demand but set aside the penalty under Section 78 of the Act. The assessee appealed against the demand, while the department appealed against the penalties being set aside.

2. The assessee argued that being a municipality, they were not aware of the taxable nature of the services provided and had not collected service tax from tenants. They requested the matter to be remanded to extend cum tax benefit and waive penalties. The department reiterated its grounds of appeal.

3. The Tribunal considered the plea of cum tax benefit raised by the assessee as reasonable and remanded the matter to the adjudicating authority to rework the demand by granting the benefit of cum tax. Additionally, the Tribunal referred to a previous case involving a municipality and the waiver of penalties under Section 78, highlighting that entities like municipalities, serving the public welfare, should not be penalized for unintentional non-compliance.

4. Ultimately, the Tribunal partly remanded the assessee's appeals to reconsider the cum tax benefit and recalculating the demand, while dismissing the department's appeals against the penalties set aside by the Commissioner (Appeals). The Tribunal upheld the decision to waive penalties considering the nature of the assessee as a local self-government entity.

This judgment provides clarity on the issue of cum tax benefit and penalties under the Finance Act, 1994, specifically in cases involving entities like municipalities engaged in public welfare activities.