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TMI Blog2024 (4) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... /- and imposed penalty of equivalent amount under section 78 of the Finance Act, 1994 Finance Act and also imposed penalty of Rs. 5,000/- under section 77 of the Finance Act. 2. The appellant holds service tax registration and was engaged in providing erection, commissioning or installation service, and management, maintenance or repair service to various clients including to the Delhi Jal Board DJB. Investigation was initiated against the appellant by the S&I Branch of Division II of the Commissionerate. ST-2 Certificate, ST-3 returns, TR-6 challans, balance sheets and profit and loss account of the appellant for the period 2005-2006 to 2009-2010 were called for by the officers. On scrutiny of these documents, it was found that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sified the service of laying and repair of pipelines for water and sewage as management, maintenance or repair service and confirmed the demand of Rs. 1,28,72,584/- ; (c) The SCN did not propose demand under the head of "management, maintenance or repair service" and it was not open for the Commissioner to confirm the demand under this head without putting the appellant to notice. In doing so, he went beyond the scope of SCN. (d) The Commissioner wrongly classified the appellant's services under management, maintenance or repair services based on a single activity i.e. maintenance of sewage pipes during rainy season. These services have nothing to do with the laying of pipelines for fresh water but the Commissioner erroneously clubbed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We now proceed to decide the issues. It is not in dispute that the appellant had not paid service tax, and did not disclose the rendering of these services in its ST returns. Therefore, the department called for various records of the appellant and culled out the information and determined the tax liability as per the best judgment assessment under section 72 of the Finance Act, 1994. This section reads as follows :- "72. Best judgment assessment. - If - (a) any person fails to make the return required by any notice given under sub-section (2) of section 70 and has not made a return or a revised return under sub-section (3) of that section, or (b) any person having made a return fails to comply with all the terms of a notice issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,28,72,584/- under this head needs to be set aside and we do so. 10. As far as the "renting of immovable property service" is concerned, we find that renting of immovable property was chargeable to service tax under section 65 (105) (zzzz) during the relevant period except where such renting of property was for residential purposes. According to the appellant itself, it had rented its property to run a hostel and it had not rented it to somebody to stay. What is taxable under section 65 (105) (zzzz) is a service rendered by any person by renting of immovable property or any other service in relation to such renting for use in the course of or for furtherance of business or commerce. Clearly, renting of the property for running a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service" or otherwise, it was fair on the part of the adjudicating authority to presume that the receipts on this count were for "supply of tangible goods" chargeable to service tax under section 65 (105) (zzzj). The demand on this count needs to be upheld and we do so. 12. The appellant also contended that the demand for the period 01.04.2005 to 30.09.2005 was beyond the period of 5 years from the date of SCN and, hence, could not be sustained. A perusal of the table in paragraph 11 of the impugned order shows that during this period (beyond five years) the only demand was under the head of "management, maintenance or repair service", which we have already set aside on merits. Consequently, the claim of the appellant that part of the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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