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TMI Blog2020 (10) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... lity after incorporation of the new levy occurred during the investigations and, therefore, does not obtain for themselves the halo of diligence. It is seen that appellant has been discharging tax liability since 16th May 2006 and, with payment of taxes amounting to ₹ 16,85,335 at some stage before ceasing to do so in July 2007, the unpaid dues is limited to ₹28,56,559 - while upholding the impugned order as being consistent with the law, the penalty under section 78 of Finance Act, 1994 is capped at this amount. Appeal dismissed. - SERVICE TAX APPEAL NO: 89286 of 2013 - FINAL ORDER NO: A/85801/2020 - Dated:- 11-9-2020 - MR C J MATHEW, MEMBER (TECHNICAL) AND SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Dinesh Agarwal, Chartered Accountant for the appellant Shri Dilip Shinde, Assistant Commissioner (AR) for the respondent ORDER This appeal of M/s Go Airlines (India) Pvt Ltd, challenging the recovery of ₹56,58,312 under section 73 of Finance Act, 1994 read with section 66A of Finance Act, 1994, along with interest thereon under section 75 of Finance Act, 1994, besides imposing penalty of like amount under section 78 of Finance Act, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol over the data remained with the appellant and was accessed, as well as used, primarily by their employees. 3. Referring to the findings of the impugned order that 4.6 What exactly is relevant is what is the outcome of the service provided by Radiix. For providing any Online Data Access or Retrieval process, there would definitely be some software and some operating system and both need be worked on some server. The particular software appears to be the property of Radiix and Radiix allow them to use by their customer. It is very important to understand that Radiix is not only giving the software but Radiix also operate the software on their own server which results in to generation of certain outcome.... Learned Chartered Accountant contends that this clear admission of the nature of the activity should have relieved them of the tax burden from the earlier date proposed in the notice. Further, it is submitted that the due discharge of liability as the recipient of information technology software from June 2008 as well as provision of service, under the classification decided upon in the impugned order, being outside India with consequent exemption from tax is am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of leviability, though held as irrecoverable, in re Jet Airways India Ltd and in re British Airways, the contract entered into with M/s Radixx Solutions International Inc is not one of computerised reservation system but a comprehensive, enterprise-wide software. Undoubtedly, the dispute in the cited decisions pertained to contract for the reservation system providing interface for agents and travelling public but the said decisions did not restrict online information database access and retrieval service to computer reservation system alone. Admittedly, the impugned contract does provide the very same interface and is intended as a travel business solution. In the definition clause of the contract, it is seen that Radixx System is the Radixx proprietary software system, incorporating the Radixx Software, for use in providing call center and Internet-based consumer reservation and information management services for travel -related business and the hosting of service is to be the responsibility of the licensor of the software. It is also clear from the appended schedules and exhibits that annual payments are to be effected on the basis of passenger segment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by both sides on the question of revenue neutrality. in re Jet Airways India Ltd is the ground cited by Learned Chartered Accountant for extending the same benefit to the appellant. Our finding supra are not based upon, and did not place reliance on, the decision in re British Airways. It is after examining the facts and submission made on behalf of the appellant and subjecting the terms of the contract to scrutiny that the conformity to the description of the taxable service has been determined. 8. On the other hand, the several decisions cited by Learned Authorised Representative establishes that the liability to pay tax during the extended period cannot be extinguished by adopting the plea of revenue neutrality. While revenue neutrality may be pleaded as evidence of lack of intent to evade tax, it may not, in every circumstance, justify the negation of the scope for invoking the extended period. We find no evidence on record that the appellant had been guided by expert advice to, consciously, be ignorant of the leviability for the said activity. The legal opinion furnished in evidence by Learned Chartered Accountant has been obtained after the issue of default had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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