2019 (2) TMI 91 - AT - Service Tax

Levy of service tax - photography service - the service was brought within the service tax net with effect from 16.7.2001 - period in dispute is October 2002 to September 2006 - Held that - Photography studio or agency means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography. Undisputedly, the appellant is engaged in doing advertisement film and such other activities. He also renders service in the cinematographic field. A person who renders such service cannot be considered to be an amateur photographer as rightly concluded by the authorities below - Merely because the appellant does not have a studio or has own industry not registered as commercial concern would not take him out of the ambit of the photography service as he is a professional photographer - demand upheld. Penalty u/s 78 of FA - Held that - The appellant had entertained a reasonable view as to whether he would fall within the definition of photography service as he was not having any studio for rendering taxable service and taking into consideration the bonafide belief of the appellant, penalty is not leviable - penalty set aside. Appeal allowed in part.

Summary

Issues:
1. Whether the appellant's photography service falls within the service tax net for the period October 2002 to September 2006.
2. Whether the penalties imposed on the appellant are justified under the Finance Act, 1994.

Detailed Analysis:
1. The appellant, an individual freelance photographer, was alleged to have provided photography services without paying service tax from October 2002 to September 2006. The authorities contended that the appellant's activities, including making advertisement films and providing various photography services, fell under the definition of photography service as per the Finance Act, 1994. The appellant argued that he did not own a studio or operate as a commercial concern, thus should not be liable for service tax. However, the tribunal found that the appellant, having received substantial consideration for his services, qualified as a professional photographer under the law. The demand for service tax and interest was upheld, ruling against the appellant on the merits of the demand raised.

2. Regarding the penalties imposed on the appellant, the tribunal considered the argument that the appellant had a genuine belief that he was not liable to pay service tax due to not having a studio and operating independently. The tribunal noted that there was no evidence of intentional tax evasion or unaccounted transactions by the appellant. Therefore, the penalty imposed under section 78 of the Finance Act was deemed unwarranted. Citing the appellant's cooperation with the authorities and his reasonable belief regarding tax liability, the tribunal invoked section 80 of the Finance Act to set aside the penalty under section 78. The tribunal modified the impugned order by only overturning the penalty under section 78 while upholding the rest of the order, partially allowing the appeal in this regard.