2023 (12) TMI 445 - AT - Service Tax

Levy of service tax - Renting of Immovable Property Services or not - Appellant has been giving the premises situated at Krishi Pradarshini, Aligarh on rent to different vendors/persons for carrying out business from that premises - registration not taken - non-payment of service tax - non-filing of statutory ST-3 returns as prescribed - demand alongwith interest and penalty - extended period of limitation - HELD THAT - The taxable service under the category of renting of immovable movable property with effect from 01.07.2012 has been made declared service as per Section 66E of the amended Finance Act, 1994. Also all the expansions in the definition as it existed prior to this date have been deleted. Thus all cases of renting of immovable property has been declared as taxable service and made liable to service tax, without any exception for those specified under the negative list - it is not found that appellant falls under any of the category as specified by the negative list. From the plain reading of Notification No.25/2012 it is evidence that this entry exempts the services of charitable nature of fake registered society/trust registered under Section 12AA of the Income Tax Act. It does not say that the trust/society registered under Section 12AA of the Income Tax Act is exempt from payment of service tax. The activities undertaken by the appellant are in nature of commercial activities or a consideration for providing certain income - there are no merits in the arguments advanced by the appellant to affect that for the reason that they are registered under Section 12AA of Income Tax Act, this exemption should be allowed to them. In our view this exemption Notification is not available to the appellant. Section 78 is pari material with Section 11AC of the Central Excise Act, 1944. Since it is held that extended period has been rightly invoked under Section 73 of the Finance Act, 1994, penalty under Section 78 cannot be faulted with - there are no irregularity in respect of penalties imposed. Further, penalty under Section 77 has been imposed for the reason that appellant was not filing the ST-3 returns during the said period and also the penalty imposed seems to be reasonable, the penalty for non-submission of ST-3 return upheld. Late fee also imposed under Section 70 of the Act read with Rule 7C of the Act seems reasonable. Interest - HELD THAT - As the appellant has failed to pay the service tax by the due date, the demand of interest under section 75 of the Finance Act, 1994 is upheld. Extended period of Limitation - HELD THAT - Having known that service tax was leviable under this category appellant should have taken registration and started paying the service tax. They deliberately did not took registration and did not paid the service tax during the period of demand. Hence the benefit of bonafide belief cannot be extended in the present case to the appellant. Also it is on record that appellant were not filing any returns etc during the period and have never declared the services provided to the department, despite being aware that the services provided by them were taxable - Extended period rightly invoked. There are no merits in the appeal - appeal dismissed.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Applicability of service tax under the category of 'Renting of Immovable Property Services'.
3. Exemption claim under Notification No. 25/2012-ST.
4. Invocation of extended period of limitation.
5. Imposition of penalties and interest.

Summary:

1. Violation of Principles of Natural Justice:
The appellant contended that the order was passed without being heard, violating natural justice principles. However, the Tribunal found that the Commissioner had provided five opportunities for personal hearings, which the appellant did not attend. Thus, the claim of violation of natural justice was dismissed, referencing the Supreme Court's decision in F.N. Roy Vs. Collector and Jethmal Vs. UOI.

2. Applicability of Service Tax under 'Renting of Immovable Property Services':
The Tribunal upheld the Commissioner's finding that the appellant's activities of renting out shops and vacant land for commercial purposes fall under 'Renting of Immovable Property Services' as defined under Section 66(E) of the Finance Act, 1994. The Tribunal noted that renting of immovable property is a declared service and taxable under the provisions of the Finance Act, 1994.

3. Exemption Claim under Notification No. 25/2012-ST:
The appellant claimed exemption as a charitable trust registered under Section 12AA of the Income Tax Act. The Tribunal rejected this claim, stating that the exemption under Notification No. 25/2012-ST applies only to services of a charitable nature provided by such entities, not to commercial activities like renting out property.

4. Invocation of Extended Period of Limitation:
The Tribunal found that the extended period of limitation was rightly invoked as the appellant had willfully not registered, paid service tax, or filed ST-3 returns despite being aware of their liability. The Tribunal referenced the decision in Bharat Automotive Pressings (I) Pvt. Ltd. and noted that the appellant's conduct indicated an intent to evade tax.

5. Imposition of Penalties and Interest:
The Tribunal upheld the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994, and the demand for interest under Section 75. The penalties were justified due to the appellant's deliberate non-compliance and suppression of facts. The Tribunal also upheld the late fee for non-submission of ST-3 returns, finding it reasonable.

Conclusion:
The appeal was dismissed, and the Tribunal upheld the original order, confirming the demand for service tax, interest, and penalties. The appellant's arguments on natural justice, exemption, and limitation were rejected, and the Tribunal emphasized the appellant's willful non-compliance and intent to evade tax.