2018 (11) TMI 364 - AT - Service Tax

Penalty u/s 77 and 78 of FA - Revenue is of the view that the service tax and interest having not paid on or before 28.11.2012, for which reason also the penalty under Section 77 and 78 was attracted - Renting of Immovable Property Services - Held that - A perusal of the records reveals that the appellant had questioned the legality and based only on the directions of the Hon ble High Court of Kerala, the dispute came to be settled. This being the case, no penalty could be exigible for which reason the penalty is set aside - The interest being mandatory, however, the adjudicating authority has to work out the same - appeal allowed in part.

Summary

Issues:
Penalty imposed under Sections 77 and 78 of the Service Tax Act on services related to Renting of Immovable Property.

Analysis:
In this appeal, the appellant challenged the penalty imposed under Sections 77 and 78 of the Service Tax Act concerning services related to Renting of Immovable Property. The appellant contended that they had fulfilled their liability by 31.03.2012, before the Show Cause Notice issued on 21.04.2014. The appellant argued that the uncertainty of the issue until the Hon'ble Apex Court settled it demonstrated their good faith, making them not liable for any penalty. On the contrary, the Ld. AR supported the lower authorities' findings.

During the hearing, the appellant's advocate submitted evidence of tax payments towards Renting of Immovable Property Services dated 29.03.2012 and 31.03.2012, which predated the Show Cause Notice. The Commissioner (Appeals) incorrectly stated that a balance amount was not covered in the proceedings before the Hon'ble High Court, leading to the imposition of penalty and interest. The Revenue argued that since the service tax and interest were not paid by 28.11.2012, penalties under Sections 77 and 78 were justified. The appellant admitted to the delay in paying the duty liability, necessitating interest payment. The Tribunal held that the appellant must prove payment of duty liability with interest, including the remaining service tax amount.

The Tribunal found discrepancies in the assessment officer's appropriation of funds against the demand, leaving a balance to be paid. The appellant's challenge against non-payment was deemed incorrect, as the assessing officer had already adjusted a significant sum against the demand. The Tribunal noted that the appellant's dispute was resolved based on the directions of the Hon'ble High Court of Kerala, leading to the conclusion that no penalty was applicable. However, interest was deemed mandatory, and the adjudicating authority was directed to calculate it based on the Tribunal's observations. Consequently, the penalty was set aside, and the appeal was partly allowed.

Overall, the Tribunal's decision focused on the timeliness of tax payments, the necessity of interest payments, and the appropriateness of penalties under Sections 77 and 78 of the Service Tax Act in the context of services related to Renting of Immovable Property.