2009 (12) TMI 377 - AT - Service Tax

Penalty- Delay in payment of service tax- the appellant had provided their premises on rent to M/s. Oriental Bank of Commerce. A show-cause notice was issued wherein it was charged that she had delayed payment of Service tax for the period from June 07 to March 08 and on which they failed to pay interest of Rs. 74, 912/- and rendered herself liable for penalty amounting to Rs. 2, 48, 403/- under Section 76 of the Finance Act. The interest and penalty were confirmed by both the lower authorities. Appellant contending that Service Tax reimbursed by tenant only on 4.1.2008 and on receipt the same was paid. Held that- levy being new appellant had bonafide belief in not depositing Service tax in time. No allegation that service tax collected but not paid. Penalty set aside.

Summary

Issues:
- Confirmation of penalty under Section 76 of the Finance Act, 1994 for delayed payment of Service tax on renting premises.

Analysis:
1. Confirmation of Penalty: The appellant filed an appeal against the penalty confirmation of Rs. 2,48,403 under Section 76 of the Finance Act, 1994 for delayed payment of Service tax. The appellant had rented out premises to a bank and delayed the payment of Service tax for a specific period, leading to interest and penalty charges. Both lower authorities confirmed the interest and penalty. The appellant contended that the levy of Service tax in the category of "Renting of immovable property" was a new tax introduced in 2007, and the tenant agreed to reimburse the tax only after a certain period. The appellant argued that due to the newness of the tax and ongoing dispute regarding the levy, she could not pay the tax on time in good faith. The appellant also cited a Delhi High Court decision to support the argument that renting immovable property did not entail value addition and should not be considered a service.

2. Legal Standpoints: The appellant's advocate highlighted the appellant's genuine belief in not paying the tax on time due to the newness of the levy and ongoing legal disputes. However, the respondent's representative argued that the case law cited by the appellant was under challenge at the Supreme Court level, and until finality is reached, the liability to pay the tax and penalty remains. The respondent relied on various decisions to support the argument that the appellant should be liable for the penalty since she admitted the tax liability.

3. Tribunal Decision: After hearing both parties, the Tribunal noted that the Service tax levy was new, and the appellant acted in good faith in not depositing the tax on time. Referring to a previous case, the Tribunal found that in similar circumstances where the tax was belatedly paid but before a show-cause notice was issued, and the appellant cooperated with the department, the penalty was dropped. The Tribunal upheld the decision to dispense with the penalty under Sections 76 and 77 of the Finance Act, 1994, in line with Section 80. Consequently, the penalty demand was dropped, and the impugned order was set aside only to that extent.

This detailed analysis of the judgment highlights the key legal arguments, precedents cited, and the Tribunal's decision regarding the confirmation of penalty under Section 76 of the Finance Act, 1994 for delayed payment of Service tax on renting premises.