2014 (1) TMI 1202 - AT - Service Tax

Stay - Renting of immovable property - extended period of limitation - Imposition of equivalent penalty - Statutory proceeding not followed - Held that - appellant themselves got registered with the department under the category of Renting of Immovable Property Service as early as in July, 2007. Therefore, the appellant cannot plead ignorance of law or confusion about the levy. Thereafter, they did not follow any of the statutory procedures nor did they discharge any tax liability. The law was retrospectively amended in 2010 to provide for deeming the activity of renting as a taxable service. In the Finance Act, 2012 it was also provided that if the service tax liability along with interest liability is discharged on or before 26/11/2012, there will not be any penalty on the service providers. Thus, adequate opportunity was provided to the defaulting service providers to discharge service tax liability. In this particular case, the appellant has not chosen to avail the said facility. From the conduct of the appellant, it is clear that the appellant despite knowing the law, did not choose to follow the law and therefore, the plea of time bar taken by the appellant cannot be accepted - appellant does not have prima facie case at all - Following decision of SQL Star International Ltd. Versus CC, CE and Service Tax Commissionerate 2011 (7) TMI 868 - Andhra Pradesh High Court - Conditional stay granted.

Issues:
1. Liability to pay service tax on renting of immovable property.
2. Validity of retrospective amendment to the Finance Act, 1994.
3. Appellant's plea for confusion about the levy.
4. Appellant's request for grant of stay.
5. Revenue's contention regarding appellant's conduct and plea of time bar.
6. Consideration of vires of the levy and time-bar argument.
7. Financial hardship plea by the appellant.
8. Balance of convenience and direction for pre-deposit.

Analysis:

1. Liability to pay service tax on renting of immovable property:
The appellant, a proprietor of a property development firm, rented out immovable property without discharging the service tax liability. The Commissioner of Central Excise issued a show cause notice demanding service tax, interest, and penalties. The appellant challenged the order, citing confusion about the levy due to retrospective amendments to the Finance Act, 1994.

2. Validity of retrospective amendment to the Finance Act, 1994:
The appellant argued that the retrospective amendment deeming renting as a service activity from 01/06/2007 created confusion. The Delhi High Court initially held the levy as ultra vires but later reversed its decision, upholding the levy as intra vires. The appellant contended that the retrospective amendment indicated confusion about the levy, justifying non-payment of service tax.

3. Appellant's plea for confusion about the levy:
The appellant claimed that the confusion surrounding the vires of the levy led to non-payment of service tax. However, the Tribunal rejected this claim, stating that the appellant's registration in 2007 preceded the Delhi High Court's 2009 decision, undermining the plea of confusion as an afterthought.

4. Appellant's request for grant of stay:
The appellant sought a stay on recovery, arguing that the payment already made should suffice pending the appeal. The Tribunal considered the absence of financial hardship and prima facie case on merits, ruling in favor of the Revenue based on the balance of convenience.

5. Revenue's contention regarding appellant's conduct and plea of time bar:
The Revenue argued that the appellant's registration in 2007 negated any claim of ignorance or confusion about the levy. Despite amendments providing opportunities to discharge tax liabilities without penalties, the appellant failed to comply, indicating a deliberate disregard for the law.

6. Consideration of vires of the levy and time-bar argument:
The Tribunal upheld the vires of the levy based on the full Bench Delhi High Court's decision and rejected the appellant's time-bar argument, emphasizing the lack of confusion in 2007 when the appellant registered. The Tribunal cited precedents to support its decision against the appellant's claim.

7. Financial hardship plea by the appellant:
The appellant did not plead financial hardship, further weakening the case for granting a stay on recovery. The Tribunal considered this aspect along with the absence of a prima facie case on merits, reinforcing its decision against the appellant.

8. Balance of convenience and direction for pre-deposit:
Considering the lack of financial hardship and a weak case on merits, the Tribunal directed the appellant to make a pre-deposit of the balance amount of service tax confirmed within eight weeks. Compliance would result in waiving interest and penalty liabilities, with recovery stayed during the appeal's pendency.

This comprehensive analysis of the judgment highlights the key issues, arguments presented by both parties, legal considerations, and the Tribunal's decision, providing a detailed overview of the case.

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