2019 (6) TMI 515 - AT - Service Tax

Imposition of penalty u/s 78 of FA - rental income from immovable property - Service tax paid on being pointed out - intent to evade present or not - HELD THAT - The appellants have deposited service tax on being pointed out by the Department. Regarding payment of service tax on rendering service of renting of immovable property, they expressed that they had bonafide belief that the service tax was not payable as Hon ble Delhi High Court has stayed the provisions. It was through retrospective amendment only that the tax was made applicable. It is clear that the appellants have made a good case for waiver of penalty in respect of service of renting of immovable property. There are no ingredients of misstatement, suppression of facts etc. with an intent to evade payment of service tax. In respect of imposition of penalty relating to delay in payment of service tax on the service of renting of immovable property, no mala fides are proved and the issue being of interpretational nature, penalty is not imposable. There is no case of leviability of penalty under Section 78 of the Finance Act, 1994. Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Delay in filing the appeal before the Tribunal, imposition of penalties under Sections 76 and 78 of the Finance Act, 1994, interpretation of the taxability of "Renting of Immovable Property," waiver of penalties, retrospective amendment affecting tax applicability.

Analysis:
The judgment by the Appellate Tribunal CESTAT Kolkata involved various issues. Firstly, the Tribunal addressed the delay in filing the appeal before them. The Appellant sought condonation of a 49-day delay, attributing it to an accident involving the accountant responsible for preparing the appeal papers. The Tribunal, considering the reasons provided, condoned the delay and allowed the Miscellaneous Application (COD).

Moving on, the Tribunal delved into the core issue of the appeal, which revolved around the imposition of penalties under Sections 76 and 78 of the Finance Act, 1994. The case pertained to a partnership firm with rental income from immovable property facing a show-cause notice for non-payment of service tax. The adjudicating authority confirmed the tax demand but imposed penalties under the mentioned sections. The lower appellate authority modified the order, setting aside the penalty under Section 76 but upholding that under Section 78, leading to the appeal before the Tribunal.

The Tribunal considered the arguments presented by both sides. The Appellant contended that they had paid the service tax before the show-cause notice, citing provisions of the Finance Act and relevant departmental confirmations. They highlighted the uncertainty regarding the taxability of "Renting of Immovable Property" due to legal precedents, asserting no intent to evade tax. On the other hand, the Revenue reiterated the lower authorities' order.

After thorough examination, the Tribunal observed that the service tax liability had been paid in full by the Appellant, who contested only the penalties. Noting the absence of misstatement or suppression of facts to evade tax, the Tribunal found the issue to be interpretational in nature, warranting no imposition of penalty under Section 78. They referenced the substantial litigation surrounding the taxability of renting immovable property and a retrospective amendment affecting tax applicability.

Consequently, the Tribunal set aside the penalty under Section 78 of the Finance Act, 1994, and allowed the appeal filed by the Appellant. The decision was pronounced in open court, bringing the matter to a close.