2018 (2) TMI 1568 - HC - Service Tax

Penalty u/s 76 and 78 - suppression and evasion of Service Tax - Whether the Tribunal was justified in passing a contradictory order and thereby deleting the penalty only on the ground of non receipt of tax by the assessee from the service receiver? Held that - It is observed that the assessee has not received tax from the Rajasthan Housing Board which is a Government Corporation therefore the assessee cannot be penalised for non receipt of the tax from Rajasthan Housing Board. He has also not received tax and paid the same with interest therefore if penalty is imposed he would have no other option but to close its business. The view taken by the tribunal is not only justified but it is the only view which can be taken - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appellant challenging tribunal's judgment partially allowing the appeal.
2. Tribunal setting aside penalties imposed under sections 76 & 78 despite finding of suppression and evasion of Service Tax.
3. Tribunal deleting penalty based on non-receipt of tax by appellant from service receiver.

Analysis:
1. The appellant appealed against the tribunal's judgment, questioning the setting aside of penalties under sections 76 & 78 despite findings of suppression and evasion of Service Tax. The appellant argued that penalties should not have been deleted solely due to non-receipt of tax from the service receiver. The appellant contended that the tribunal's decision was contradictory and unjustified.

2. The case involved the appellant providing services like Real Estate Consultant/Management Consultancy/Consulting Engineer/Business Auxiliary Services to Rajasthan Housing Board under a contract for developing the "Raj Aangan Scheme." During a search, it was discovered that the appellant did not pay service tax on the gross amount charged from customers and lacked service tax registration. The tribunal observed that the appellant's services fell under taxable categories, leading to a service tax demand for the extended period.

3. The tribunal noted that the appellant raised bills to the Rajasthan Housing Board with a separate service tax element, but did not receive the tax amount from clients. Despite the appellant's plea for penalty waiver under Section 80 of the Finance Act, 1994, the tribunal found a reasonable cause for non-payment of service tax. The tribunal considered the appellant's non-receipt of tax from the Rajasthan Housing Board, a government corporation, as a valid reason for not imposing penalties, as it would lead to business closure.

4. The tribunal's decision was supported by the fact that the appellant did not receive tax from the service receiver and would face adverse consequences if penalties were imposed. Therefore, the tribunal's decision was deemed justifiable and the only reasonable course of action. Consequently, the High Court dismissed the appeal, stating that no substantial question of law arose from the tribunal's decision.

In conclusion, the High Court upheld the tribunal's decision to set aside penalties imposed on the appellant, considering the circumstances of non-receipt of tax from the service receiver. The judgment highlighted the importance of statutory definitions and contractual terms in determining tax liabilities and penalty waivers in service tax cases.