2016 (5) TMI 1217 - AT - Service Tax

Invokation of extended period of limitation - Section 80 of the Act - Imposition of penalty under Section 78 of the Act - Business Auxilliay Service - Appellant was not aware of service tax liability and were under the bonafide belief that ICICI bank will take care of tax liability, if any - Held that - from the facts, it is clear that appellants are aware of the tax liability and did pay some amounts towards service tax under BAS category. It goes to show that they have chosen not to report the full receipt of money to discharge the tax liability. Further, the appellant s plea that their payment of the sub-agents should be deducted from the gross value is also not supported by any legal provisions. To invoke the provisions of Section 80 the appellant should show reasonable cause for non-payment of service tax in time but no such reasonable cause could be established in the present case. The taxability of the service rendered by the appellant is not subject matter of doubt or interpretation during the material time. In fact the Board s clarification issued on 20/06/2003 itself makes it clear that there is no room for doubt for the period subsequent to the said clarification. - Decided against the appellant

Summary

Issues:
1. Tax liability of the appellant under Business Auxiliary Service (BAS) category.
2. Imposition of penalties under various Sections of Finance Act, 1994.
3. Appellant's contention of non-awareness of service tax liability and bonafide belief.
4. Contestation of appellant's submissions by the Authorized Representative.
5. Challenge to penalty imposition based on reasonable cause for non-payment of service tax.
6. Comparison with a previous Tribunal decision regarding penalties.
7. Appellant's registration with the Service Tax Department and payment of partial service tax.
8. Lack of reasonable cause for non-payment of service tax and non-cooperation with authorities.

Analysis:
1. The case involved the appellant, a direct sales agent of a bank, facing inquiries regarding tax liability under the BAS category for the period from 01/10/2006 to 30/09/2011. The Original Authority confirmed a demand of &8377; 44,04,621/- and imposed penalties under various Sections of the Finance Act, 1994. The Commissioner (Appeals) upheld the original order, leading to the present appeal.

2. The appellant contended that their client bank should have advised them on the service tax liability and discharged the same, arguing a lack of awareness and bonafide belief. The appellant also challenged the imposition of penalties under Section 78, citing no willful suppression to evade payment. The appellant sought relief under Section 80 for reasonable cause for non-payment of service tax.

3. The Authorized Representative contested the appellant's submissions, highlighting the appellant's non-cooperation and delay in providing financial details to the Department. It was argued that there was no confusion regarding tax liability, and bonafide belief was not applicable in this case.

4. The Tribunal noted that there was no specific challenge to the tax liability of the appellant during the material period. The appellant's liability under the BAS category was established, and the main issue was the penalty imposition. The Tribunal compared the present case with a previous decision to emphasize the lack of misguidance by a consultant or the client in the appellant's case.

5. The appellant's registration with the Service Tax Department and partial payment of service tax were acknowledged. However, the appellant's failure to provide complete financial details and the incorrect filing of ST-3 returns raised concerns. The Tribunal found no reasonable cause for non-payment of service tax and dismissed the appeal, citing the clarity of taxability during the material time.

6. In conclusion, the Tribunal dismissed the appeal, emphasizing the appellant's awareness of tax liability and the lack of reasonable cause for non-payment of service tax. The decision was pronounced on 16.05.2016.