2018 (5) TMI 918 - AT - Service Tax

Renting of immovable property service - first appellate authority had held the demand for the period upto 8th May 2010 to be unsustainable in the absence of any justifiable evidence of intent to evade payment of duty by suppressing facts - Held that - the appellant-assessee was liable to tax with effect from June 2007 when renting of immovable property was made taxable with retrospective effect. Being a retrospective legislation, the assessee-appellant cannot be held to have had any intent to evade tax - the appellant did discharge tax liability as per its own computation. The first appellate authority has given due consideration to all these aspects before coming to conclusion that the liability to tax up to 8th May 2010 does not exist. The contention raised by Revenue and put forth by Learned Authorised Representative do not controvert this finding - decided against Revenue. Penalty - Held that - there was discharge of tax liability in full before issue of show cause notice - Considering the circumstances in which the legislation was retrospectively made applicable and the pendency of the various disputes in various courts on the same issue, invocation of section 80 justified - penalty set aside. Appeal disposed off - decided in favor of assessee.

Summary

Issues: Appeal against reduction of tax demand and penal consequences by first appellate authority. Appeal by Revenue against dropping of a significant amount from the tax demand. Interpretation of tax liability on renting of immovable property with retrospective effect. Consideration of intent to evade tax and payment of tax before show cause notice. Application of section 80 of Finance Act, 1994 to waive penalty.

In this case, the appellant-assessee appealed against the order of the first appellate authority, which had reduced the tax demand and penal consequences. The first appellate authority had restricted the demand for the period up to May 2010, finding the demand unsustainable before that due to lack of evidence of intent to evade tax. The Revenue, aggrieved by the significant reduction in tax demand, filed an appeal against dropping a substantial amount. The tax liability in question was related to renting of immovable property, leviable under section 65(105)(zzzz) of the Finance Act, 1994, with retrospective effect from June 2007.

The Revenue contended that the tax was demanded on consideration received for renting immovable property and that the liability was imposed retrospectively from June 2007. The Revenue argued that the presumptions made in the impugned order regarding non-payment of tax for the retrospective period could not be blamed on the assessee. The assessee, on the other hand, claimed to have deposited a certain amount before the issuance of the show cause notice and had registered themselves as assessees early on. The assessee maintained that the taxability of the service was disputed for a long time, and their belief in non-taxability was reasonable.

The Tribunal observed that the appellant was liable to tax from June 2007 due to the retrospective legislation on renting of immovable property. Despite the retrospective nature of the legislation, the appellant was expected to discharge the tax liability from the effective date. The record showed that the appellant had indeed paid the tax as per their own computation. The Tribunal noted that the first appellate authority had considered all relevant aspects before concluding that the tax liability up to May 2010 did not exist. The contentions raised by the Revenue did not refute this finding, leading to the dismissal of the Revenue's appeal.

Regarding the appeal of the assessee, the Tribunal acknowledged the full discharge of tax liability before the show cause notice was issued. Considering the circumstances of the retrospective application of the legislation and the ongoing disputes in various courts on the same issue, the Tribunal deemed it appropriate to invoke section 80 of the Finance Act, 1994, to waive the penalty. Consequently, the Tribunal dismissed the Revenue's appeal and ordered the waiver of penalty for the assessee, disposing of the appeals accordingly.