2018 (8) TMI 619 - AT - Service Tax

Penalty u/s 78 - amount towards service tax and interest deposited by the appellant before issuance of the show-cause notice - Held that - Due to bonafide belief that service tax was not payable on legal service the appellant did not pay the service tax amount into the Central Government account. However on pointing out the mistake by the audit wing the service tax amount towards such taxable service was paid before issuance of the show-cause notice. With regard to mismatch in the figure of taxable value reflected in the periodic return vis- -vis the Balance Sheet the submission of the appellant are that due to non-receipt of commission amount from the service receivers the same was not reflected in the returns filed by the appellant and that on actual receipt of the said amount the particulars where duly reflected in the records subsequently. Penalty u/s 78 - Held that - It is an undisputed fact that the Department has not brought on any tangible evidence to prove involvement of the appellant in fraudulent activities - penalty set aside. Appeal disposed off.

Summary

Issues:
- Appellant's liability for service tax on legal services
- Imposition of penalty under section 78 of the Act
- Discrepancy in taxable value reflected in returns and balance sheet

Analysis:

Issue 1: Appellant's liability for service tax on legal services
The case involved the appellant, a service tax registrant, who did not pay service tax on legal services received from advocates under reverse charge mechanism. The Department initiated proceedings seeking confirmation of service tax demand and penalty imposition. The appellant did not contest the service tax demand but argued against the imposition of penalty under section 78 of the Act. The Ld. Consultant for the appellant contended that there was no fraudulent activity involved and attributed the non-payment of service tax to a bonafide belief that it was not payable. The Tribunal noted that the appellant rectified the non-payment upon audit observation and before the show-cause notice was issued. Additionally, the Tribunal found no evidence of fraud or suppression of facts by the appellant. The judicial forums had differing views on the levy of service tax on such services, and the Department failed to establish fraudulent intent on the appellant's part.

Issue 2: Imposition of penalty under section 78 of the Act
The Tribunal considered the appellant's argument that no fraudulent activities were involved and that the discrepancy in tax payment was due to a bonafide belief that service tax was not applicable. The appellant rectified the non-payment upon audit observation, indicating a lack of fraudulent intent. The Tribunal found that the Department did not provide tangible evidence to prove the appellant's involvement in fraudulent activities. Consequently, the Tribunal concluded that the penalty imposed under Section 78 of the Act could not be justified and set it aside.

Issue 3: Discrepancy in taxable value reflected in returns and balance sheet
The appellant explained the discrepancy in the taxable value reflected in periodic returns compared to the balance sheet by attributing it to non-receipt of commission amounts from service receivers. The appellant maintained that upon actual receipt of the commission, the records were updated accordingly. The Tribunal accepted the appellant's explanation, noting that the mismatch was due to the accounting treatment adopted by the appellant. The appellant rectified the discrepancy by depositing the service tax amount before the initiation of show-cause proceedings. The Tribunal found no evidence of fraudulent activities related to this discrepancy and concluded that the penalty imposed could not be sustained.

In conclusion, the Tribunal modified the impugned order to set aside the penalty imposed on the appellant, as there was no merit in sustaining it based on the lack of evidence of fraudulent activities and the appellant's bonafide belief regarding service tax liability.