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TMI Blog2019 (4) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation - HELD THAT:- The department was already aware of this matter as necessary enquiries have been made by them in the month of July 2011 itself and before that we also feel that the necessary ingredients for invoking the extended time proviso under Section 73 of Finance Act, 1994 for demanding service tax are not present in the circumstances of this case and, therefore, we feel that the demands should have been restricted to the normal period of demand. Penalty - HELD THAT:- There are no valid grounds for imposing penalty on the appellant as the circumstances under which the non-payment of the service tax has occurred can easily be covered by the provisions of Section 80 of the Finance Act, 1994. The demand of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a service tax of ₹ 7,92,512/- for the period covering 2007-2008 to 2012-2013 (which is upto June 2012). The basic contention of the department has been that the rent collected by the appellant from the whole sellers/traders commission agents against the renting of the shops/outlets and godowns are covered under the category of the renting of the immovable property as defined under Section 65 (105) (zzzz) of the Finance Act, 1994. The show cause notice also invokes the penal provisions of Section 76, 77 and 78 of the Finance Act, 1994. The above-mentioned show cause notice came to be adjudicated by an order-in-original dated 13 March 2015, wherein the allegations and charges relevant in the show cause notice has been confirmed and a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Committees except renting of the shops in the market area. It was also after the clarification of the Board that it became clear to the department that renting of the shops/ godowns by APMCs is covered under the category of renting of the immovable property service as defined under Section 65 (105) (zzzz) of the Finance Act, 1994. That the appellant immediately after receipt of the show cause notice on 5 August 2013 has deposited the entire service tax amounting to ₹ 7,92,512/- on 19 September 2013. The learned Advocate has whemently contested that invoking of the extended time proviso under Section 73 (1) of the Finance Act, 1994 is squarely unjustified in this case as the issue was not even cleared to the department and there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not covered under service tax leviability except renting of the shops in the market area etc. We find that the department was already aware of this matter as necessary enquiries have been made by them in the month of July 2011 itself and before that we also feel that the necessary ingredients for invoking the extended time proviso under Section 73 of Finance Act, 1994 for demanding service tax are not present in the circumstances of this case and, therefore, we feel that the demands should have been restricted to the normal period of demand. We also find that there are no valid grounds for imposing penalty on the appellant as the circumstances under which the non-payment of the service tax has occurred can easily be covered by the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity by resorting to conduct, which will attract any of the serious allegation listed in the proviso to Section 73(1) of the Act. 17. We also note that the tax entry renting of immovable property service itself was subject matter of serious litigation in various judicial forum. In fact, the Hon ble Delhi High Court in the case of Home Solutions Retail Ltd. v. Union of India - 2011 (21) S.T.R. 109 (Delhi) held that the activity of the rent per se cannot be subjected to Service Tax levy, whereas the activities in relation to renting are liable to Service Tax. The decision of the Delhi High Court led to legislative changes including retrospective amendment of the concerned legal provisions in the Finance Act, 1994. In fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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