2019 (7) TMI 1352 - AT - Service Tax

Short payment of service tax - Real Estate Agents - bonafide error in short payment of tax or not - case of appellant is that the impugned order has been passed without properly appreciating the facts and law - principles of Natural Justice - HELD THAT - The appellant while filing the appeal before the Commissioner(Appeals) has annexed documents in support of their submission i.e. ST-3 returns, summary of service tax paid towards alleged import of service, statement of expenditure incurred in foreign currency and also the case laws relied upon by the appellant, but the Commissioner (Appeals) has not considered them but rather observed that the appellants have not filed documents to justify their claim - Further, in the additional submissions filed before the Commissioner (Appeals), the appellants have filed all the documents but the same has also not been considered. Also it is found that on account of the mistakes, the appellants have short paid the service tax but the mistake was rectified and short payments were made good but there is no finding in the impugned order regarding the short payments made by the appellant - Further the principles of neutrality has also not been considered by the Commissioner (Appeals). Since most of the submissions made by the appellants along with the documents filed by the appellant have not been considered by the Commissioner (Appeals), this case needs to be remanded back to the original authority for passing a de novo order after considering all the submissions as well as the documents and the proof of payment of short service tax. Appeal allowed by way of remand.

Issues involved:
1. Service tax demand on real estate services provided.
2. Allegations of short/non-payment of service tax.
3. Show-cause notice issued demanding amounts and penalties.
4. Appeal against the order confirming the demand.
5. Consideration of submissions and documents by the Commissioner(Appeals).
6. Applicability of Rule 6(1) of Service Tax Rules, 1994.
7. Invocation of extended period due to suppression.
8. Justification of defence by the appellant.

Analysis:
1. The case involved a service tax demand on real estate services provided by the appellant under the category of 'Real Estate Agents.' The appellant had entered into an agreement with a company for technical knowledge and assistance, leading to a demand of ?1,77,40,905/- along with penalties for the period from 2005-06 to 2009-10.

2. Allegations of short/non-payment of service tax amounting to ?2,52,49,377/- were made based on discrepancies in the Balance Sheet and service tax payments for the period in question. The appellant was accused of short payment of service tax, wrongful availment of CENVAT credit, and non-payment of service tax on certain transactions.

3. A show-cause notice was issued to the appellant demanding the amounts along with interest and penalties under various sections of the Finance Act, 1994. The Additional Commissioner confirmed the demand, leading to an appeal before the Commissioner(Appeals) who rejected it, prompting the present appeal.

4. The appellant argued that the impugned order was unsustainable, passed without proper appreciation of facts and law, and in violation of natural justice. They contended that the Commissioner(Appeals) did not consider their submissions or relevant documents, leading to a remand for a de novo order.

5. The appellant's defense included challenges to the nature of services received, applicability of service tax rules, and the neutrality of the revenue implications. They cited case laws and decisions to support their arguments against the demand and penalties imposed.

6. The Tribunal found that the Commissioner(Appeals) had not considered crucial submissions and documents submitted by the appellant. The mistakes in service tax payments were rectified, but the order did not address this. The case was remanded for a fresh decision considering all submissions and proof of payment.

7. The invocation of the extended period due to suppression was contested by the appellant, citing relevant decisions to support their argument against the validity of the show-cause notice.

8. The appellant's defense was challenged by the Department, highlighting the failure to produce all relevant documents to justify their claims, leading to the upholding of the Order-in-Original by the Commissioner(Appeals).

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive overview of the case and the arguments presented by both parties.

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