2018 (9) TMI 1282 - HC - Service Tax

Renting of immovable property - Before the tribunal, Municipalities accepted the tax liability - Whether the Tribunal is right in dismissing the appeal even though the retrospective amendment with regard to the payment of service tax is pending before the Hon ble Apex Court? Whether the Tribunal is right in dismissing the appeal without considering the legal aspect that the retrospective amendment with effect from previous date could only create a tax liability but not the liability to pay interests and penalties retrospectively? Whether the Tribunal is right in dismissing the appeal without discussing the aspect of limitation for the demand notice? Held that - Prima facie, the aforestated questions of law go against the tone and tenor of the order under appeal which records, in no uncertain terms, that the appellant Municipality conceded that it was liable to pay the service tax along with interest thereon and also sought time to do so - there is no question of law, much less a substantial one, arising for consideration in this appeal - appeal dismissed.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 regarding demand for service tax on renting of immovable property by Municipalities. Appellant Municipality seeking waiver of penalty after conceding to pay service tax and interest. Substantial questions of law raised before the Court regarding retrospective amendment, tax liability, interest, penalties, and limitation for demand notice.

Analysis:

The judgment pertains to an appeal by a Municipality in Andhra Pradesh under Section 35G of the Central Excise Act, 1944, concerning the demand for service tax on renting immovable property. The Municipality, in this case, had initially conceded before the Tribunal that it was not contesting the demand for service tax and interest but only sought waiver of penalty. The Tribunal, considering the plea of the Municipalities, set aside the penalties while upholding the demand for service tax along with interest. The appellant Municipality, however, sought to raise substantial questions of law before the High Court, challenging the Tribunal's decision.

The substantial questions of law raised by the appellant Municipality included concerns about the Tribunal's dismissal of the appeal amidst a pending retrospective amendment regarding service tax payment, the creation of tax liability without retrospective interest and penalties, and the aspect of limitation for the demand notice. The Court noted that these questions seemed to contradict the Municipality's earlier concession before the Tribunal regarding the payment of service tax and interest. The Court emphasized that if the Municipality did not contest the demand before the Tribunal, it should have sought rectification of the order instead of appealing against what appeared to be a consent order.

The Court highlighted that the appellant Municipality had already paid the service tax due along with interest, as confirmed by the Revenue's counsel. Consequently, the Court found no substantial question of law for consideration in the appeal and dismissed it. Any pending miscellaneous petitions were also dismissed, with no order as to costs.

In conclusion, the judgment underscores the importance of consistency in legal positions taken by parties during proceedings and the limited scope for challenging consent orders. It also clarifies the Court's stance on the payment of service tax, interest, and penalties, emphasizing compliance with tax obligations.