2021 (12) TMI 153 - HC - Service Tax

Denial of benefit of waiver from payment of Penalty under section 73 (3) of the Finance Act,1994 - renting of immovable property - petitioner was under a bona fide belief that he was not liable to pay service tax for renting of immovable property and that while the matter was pending before the second respondent, the first respondent issued the impugned show cause notice thereby denying the benefit of waiver from payment of Penalty under section 73 (3) of the Finance Act,1994 - HELD THAT - The appellants raised a point that the demand was quantified even when the investigation was in process. It is not for the appellants to contend that the investigation was not completed before the issuance of the show cause notice. In fact, if there were any materials available to issue the show cause notice even before the completion of investigation, the 1st respondent can issue show cause notice. In the present case, it is for the respondent to take a decision whether sufficient material is available to issue show cause notice or not and the appellants cannot have any say on this aspect. Therefore, the contention raised by the appellants that the impugned show cause notice is liable to be quashed since it has been issued without completion of the investigation, has no substance. The appellants are at liberty to file a reply within a period of 30 days from the receipt of receipt of a copy of this order - Appeal dismissed.

Summary

Issues:
Challenge to impugned show cause notice; Jurisdictional issue; Completion of investigation before show cause notice issuance; Quashing of show cause notice; Demand of service tax on rental income; Appropriation of service tax amount paid; Interest and penalty imposition.

Analysis:

1. Challenge to Impugned Show Cause Notice:
The Writ Appeal was filed against the order of the learned single Judge regarding the impugned show cause notice issued by the 1st respondent. The appellants contended that they are not liable to pay service tax on rental income and that the investigation had not been completed before the issuance of the notice. The Writ Court directed the appellants to file a reply to the notice within 30 days and participate in the adjudication process under the Finance Act, 1994.

2. Jurisdictional Issue:
The Senior standing counsel for the respondents argued that the appellants did not raise any jurisdictional issue regarding the issuance of the show cause notice. Since jurisdiction was not challenged, the Writ Court typically does not interfere with the proceedings. The Writ Appeal was prayed to be dismissed on this basis.

3. Completion of Investigation Before Show Cause Notice Issuance:
The appellants raised a point that the demand was quantified before the completion of the investigation. However, the court clarified that if sufficient material was available to issue the show cause notice, the 1st respondent had the authority to do so. The appellants could not challenge the issuance of the notice on the grounds of incomplete investigation.

4. Quashing of Show Cause Notice and Demand of Service Tax:
The impugned show cause notice demanded a specific amount as service tax liability on rental income collected by the appellants. The court upheld the validity of the notice and confirmed that the appellants needed to respond to it within the stipulated time frame.

5. Appropriation of Service Tax Amount Paid, Interest, and Penalty:
The notice also included provisions for the appropriation of the service tax amount paid, interest demand, and penalty imposition under various sections of the Finance Act, 1994. The court did not find any infirmity in these demands and upheld the right of the 1st respondent to seek such payments.

6. Conclusion:
The Writ Appeal was dismissed, affirming the order of the learned single Judge. The appellants were directed to file a reply within 30 days, after which the 1st respondent was instructed to pass an appropriate order on merits and in accordance with the law within three months. The appellants were granted the opportunity to be heard either in person or through a representative. No costs were imposed, and connected Miscellaneous Petitions were closed.