2021 (8) TMI 1222 - AT - Service Tax

Levy of service tax - renting of immovable property service - appellant is providing service to the film distributors by way of renting its theatre for screening films - convenience charges - pouring fees - other income - lease rent income - parking fees - service charges - VPF charges - advertisement income - sale of space or time for advertisement income - foreign exchange expenses - architect services - reverse charge mechanism. Renting of immovable property service - HELD THAT - This issue also came up for consideration before a Division Bench of the Tribunal in M/S. MOTI TALKIES VERSUS COMMISSIONER OF SERVICE TAX, DELHI I 2020 (6) TMI 87 - CESTAT NEW DELHI . It was held that the demand of service tax under renting of immovable property service was not justified for the reason that the Appellant had not provided any service to the distributor, nor the distributor had made any payment to the Appellant as a consideration for the alleged service. Income under convenience charges, pouring fees, other income, lease rent income, parking fees, VPF charges and service charges - HELD THAT - In regard to convenience fees, pouring fees, parking fees and service charges, it was submitted that though the demand of service tax proposed in the show cause notice dated 21.04.2014 was under the category of renting of immovable property services, the impugned order has confirmed the demand under the category of support services of business . It was, therefore, submitted that the impugned order has gone beyond the show cause notice. In this connection, reliance was placed on a Division Bench decision of the Tribunal in M/S DELHI DUTY FREE SERVICES PVT. LTD. VERSUS COMMISSIONER CGST DIVISION, DELHI SOUTH COMMISSIONERATE 2019 (8) TMI 1489 - CESTAT NEW DELHI . A perusal of the reply to the show cause notice filed by the appellant as also the additional written submissions clearly show that the appellant had made detailed submissions an each of these heads - the impugned order, to the extent it has confirmed the demand of service tax under these four heads is, therefore, liable to be set aside. Advertisement Income - HELD THAT - The Principal Commissioner committed an error in confirming the demand under this head. Reverse Charge mechanism - foreign expenditure incurred - HELD THAT - Not only has the Principal Commissioner ignored the submission made on behalf of the appellant, but has also failed to take into consideration the fact that service tax had been paid by the appellant. The confirmation of demand under this head, therefore, cannot be sustained - the confirmation of demands under the impugned order cannot be sustained. Extended period of limitation - Penalty - HELD THAT - It would not be necessary to examine the remaining issues raised by learned counsel for the appellant relating to invocation of the extended period of limitation or imposition of penalty. The appeal is allowed.

Summary

Issues Involved:

1. Demand of service tax under the category of 'renting of immovable property' service.
2. Demand of service tax on 'convenience charges', 'pouring fees', 'other income', 'lease rent income', 'parking fees', 'service charges', and 'VPF charges'.
3. Demand of service tax on 'advertisement income' under 'sale of space or time for advertisement income'.
4. Demand of service tax on foreign exchange expenses incurred under 'architect services' under the reverse charge mechanism.

Detailed Analysis:

1. Renting of Immovable Property Service:

The appellant claimed it was not providing 'renting of immovable property' services to film distributors, arguing the agreements were for transferring theatrical exhibition rights. The Tribunal examined similar cases, notably Moti Talkies, which clarified that agreements for screening films do not constitute renting of immovable property as no service was provided to distributors, nor did any consideration flow from distributors to the appellant. The Tribunal reiterated this stance, finding that the appellant was not liable for service tax under this category.

2. Income Under Various Heads:

The impugned order confirmed service tax on various income heads shown in the appellant's balance sheet. The appellant argued that it had replied to the first show cause notice, which the Principal Commissioner failed to consider. The Tribunal acknowledged this reply and found the Principal Commissioner's oversight as a reason to set aside the order.

Convenience Charges, Pouring Fees, Parking Fees, and Service Charges:

The show cause notice categorized these under 'renting of immovable property', but the impugned order confirmed them under 'support services of business', which the Tribunal found improper as it went beyond the show cause notice. The Tribunal cited Delhi Duty Free Services, emphasizing that adjudicating authorities cannot exceed the scope of the show cause notice.

Lease Rent Income:

The appellant contended the demand was confirmed without specific findings, despite detailed submissions. The Tribunal noted the appellant had paid service tax on space given to vendors, thus invalidating the demand.

Other Income:

The Tribunal found that the appellant had made submissions on this issue, contrary to the Principal Commissioner’s findings. Additionally, similar income for 2013-14 was dropped, supporting the appellant's stance.

VPF Charges:

The Tribunal accepted that VPF charges were subsidies for digital cinema projection equipment, with service tax already paid, invalidating further demand.

3. Advertisement Income:

The impugned order claimed the appellant made no submissions on this issue. However, the appellant provided detailed submissions and evidence of service tax payment for the relevant periods. The Tribunal found the Principal Commissioner's confirmation of demand erroneous.

4. Reverse Charge Mechanism:

The impugned order confirmed the demand under reverse charge, stating no submissions were made by the appellant. The Tribunal found the appellant had indeed made detailed submissions and had paid the service tax, thus invalidating the demand.

Conclusion:

The Tribunal found significant procedural and substantive errors in the Principal Commissioner’s order. It set aside the impugned order, invalidating the confirmed demands under various heads due to improper categorization, oversight of submitted replies, and already paid service taxes. Consequently, the appeal was allowed, and the order dated 21.04.2014 was set aside.