2018 (5) TMI 981 - AT - Service Tax

Penalty u/s 78 - service tax along with interest were paid before show cause notice - construction of residential complex service - Held that - it is well known fact that the builders in all over India challenged the levy of service tax on construction of residential complex - it cannot be said that the appellants had any mala fide intention, particularly for the reason that the appellants have not suppressed the value as they have declared in the books of account. Relying on the fact that the matter was under litigation therefore, penalty needs to be waived - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to imposition of penalty under Section 78 of the Finance Act, 1994.

Analysis:
The appellants contested the penalty under Section 78, not disputing service tax and interest payment in one case and paying before show cause notice in three other cases. The main issue revolved around the imposition of penalty under Section 78.

Appellant's Argument:
The appellants, represented by a Chartered Accountant, argued that they had no intention to evade service tax, as all transactions were recorded. They cited the ongoing controversy regarding the validity of service tax on construction of residential complexes, with industry bodies challenging the levy in courts. The intention to evade tax was refuted based on these legal challenges, indicating no malafide intent.

Revenue's Argument:
The Assistant Commissioner representing the Revenue contended that the appellants knowingly delayed service tax payment and did not disclose the value to the department, showing clear intent to evade tax. Despite a 50% penalty relief by the Commissioner (Appeals), no further leniency was warranted.

Judgment:
After reviewing submissions and records, the Member (Judicial) noted the widespread legal challenges to service tax on residential construction across India. Citing a precedent where penalties were waived in similar cases, the Member emphasized that the appellants had not concealed values in their accounts, indicating no malafide intent. Considering the ongoing legal battle in the Bombay High Court, the penalty under Section 78 was set aside, modifying the impugned order accordingly. The appeals were allowed based on these findings.