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TMI Blog2023 (4) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Hence, the rent of all persons cannot be clubbed. There is no legal entity like Body Corporate or Association of Persons therefore, rent received by the individuals cannot be clubbed and charged to service tax. He further submits that as regards the rent received by the individuals, the total rent falls below the threshold limit of exemption under Notification No. 6/2005-ST dated 01.05.2005 therefore, the demand does not sustain. He submits that identical issue has been considered by this Tribunal in the case of Neenaben R Doshi & others (Final Order No.A/10712-10734/2019 dated 16.04.2019). He also relied on the following judgments:- (a) 2018 (6) TMI 810 - CESTAT NEW DELHI - Anita Singh, Pritam Singh, Prerna Singh vs. CGST, CC & CE, Dehradun. (b) 2017 (4) GSTL 159 (Tri. Ahmd.) - Sarojben Khusalchand vs. CST, Ahmedabad (c) 2015 (40) STR 1146 (Tri. Mumbai) - CCEX, Nasik vs. Deoram Vishrambhai Patel (d) 2018 (10) TMI 559- CESTAT Chennai - A. Akila vs. CCE, Trichy (e) 2017 (10) TMI 807 - CESTAT Ahmedabad - Sanjay Kanaiyalal Motwani & Ors vs. CST, Ahmedabad (f) 2018 (10) TMI 476 - CESTAT Chennai - Shri SV Janardhanam vs. Commissioner GST & CCE, Salem (g) 2018 (10) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by this Tribunal in the case of Sarojben Khushalchand (Supra) wherein the Tribunal dealing with the absolute identical issue passed the following order :- 9. We find force in the contention of the ld. Advocates representing the respective appellants inasmuch as „association of persons‟ has been considered as a separate legal entity under the Income-tax Act for assessment and provided separate PAN number different from the PAN number possessed by individual co-owners; who joined together to form an „association of persons‟. In the present case, the show cause notices were issued in many cases to one person among the Joint owners and in other cases to all the persons who had jointly owned the immovable property provided on rent. Needless to mention, the Service Tax Registration of individual assessees for collection of Service Tax is PAN based, hence, collection of Service Tax from one of the co-owners, against his individual Registration for the total rent received by all coowners separately, is neither supported by law nor by laid down procedure. Thus, it is difficult to accept the proposition advanced by the Revenue that all the co-owners providing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating officer has considered above named four persons as one person for determining tax liability and imposition of penalties without telling any legal basis for doing so. The appellants have contested the Order in Original mainly on the grounds that rented property belongs to four separate persons (all brothers) but the service tax has been demanded wrongly by the department from the appellants by clubbing the rent received by all the co-owners and, therefore, the demand off tax is not maintainable on this ground alone. In support they have produced a City Survey Extract as evidence regarding ownership of the rented property which shows that the said property was purchased in 2003 and is owned jointly by all the four co-owners. Further, the lease agreements with M/s. Max New York Life Insurance Co. Ltd., Oriental Bank of Commerce, Axis Bank, Kotak Mahindra Bank and HDFC Standard Life Insurance Ltd. are also entered into by the appellants in their individual capacity, as per SCN also, all four co-owners have obtained separate Registration Certificate on 10-4-2012 and all the four co-owners individually paid their Service tax liability along with interest on 14-2-2012. Thus, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment, but was made by the appellants on their own when they realized that their taxable value for renting of property had exceeded the exemption limit of Rs. 10 lakhs. The adjudicating authority has claimed in his order that the appellants paid service tax only after Department started investigation, but it is not supported by any evidence or the facts on record. The SCN or the OIO do not talk of any audit objection or Preventive action or any Inspection etc. on the basis of which not payment of service tax by the appellants was pointed out. Instead in the SCN, one statement of Shri Chandulal Vishrambhai Patel is only referred to which was recorded on 22-2- 2012 which is 8 days after the appellants had paid service tax along with interest on their own. Thus, the claim of the appellant that they had paid service tax for the years 2009-10 and 2010-11 on their own initiative and there was no suppression of facts etc. on their part with any intention to evade service tax cannot be denied. Considering all these facts, I agree with the appellant‟s contention that this case was squarely covered under sub-section (3) of Section 73 which provided not to issue any notice under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be confined without the benefit of the notification No. 6/2005-S.T. 7. It is undisputed that the property which has been rented out by the respondent and his brothers is jointly owned property; service tax liability arises on such renting of property. 8. On deeper perusal of impugned order, we find that the first appellate authority has considered all the angles in the dispute and came to the correct conclusion. The findings of first appellate authority is as under. 6.2 "On mere reading of the Order-in-Original, it is evident that the adjudicating officer has considered above named four persons as one person for determining tax liability and imposition of penalties without telling any legal basis for doing so. The appellants have contested the Order in Original mainly on the grounds that rented property belongs to four separate persons (all brothers) but the service tax has been demanded wrongly by the department from the appellants by clubbing the rent received by all the coowners and, therefore, the demand of tax is not maintainable on this ground alone. In support they have produced a City survey Extract as evidence regarding ownership of the rented property which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. 6.4 Since the appellants were individually liable to pay service tax and eligible for the exemption under general exemption Notification 6/2005-S.T., dated 1-3-2005 during the period 2007-08 and 2008-09, no service tax was payable during the said period. Hence, the question of penalty under Section 76 for the said period does not arise. For the subsequent period i.e. 2009-10 6.4 & 2010-11, the appellants have already accepted their tax liability and paid Service tax along with interest on 14-2-2012. The said payment of service tax is certainly a delayed payment, but was made by the appellants on their own when they realized that their taxable value for renting of property had exceeded the exemption limit of Rs. 10 lakhs. The adjudicating authority has claimed in his order that the appellants paid service tax only after Department started investigation, but is not supported by any evidence or the facts on record. The SCN or the OIO do not talk of any audit objection or Preventive action or any inspection etc. on the basis of which not payment of service tax by the appellants was pointed out. Instead in the SCN, one statement of Shri Chandulal Vishrambhai Patel is only referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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