9911796707
TMI Blog2024 (9) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... n was going on in the Hon ble Delhi High Court in the case of HOME SOLUTION RETAIL INDIA LTD. VERSUS UOI ORS. [ 2009 (4) TMI 14 - DELHI HIGH COURT] as well as in the Hon ble Supreme Court regarding taxability of rent on immovable property , however, the appellant have regularly been filing ST-3 returns and wherever service tax has been paid by the recipients of service, it is a matter of record that on such amount, service tax was deposited in time by the appellant with the department. It is also a matter of fact that entire amount of service tax short paid, which has been made payable by the Hon ble Delhi High Court in HOME SOLUTIONS RETAILS (INDIA) LTD. VERSUS UNION OF INDIA ORS [ 2011 (9) TMI 46 - DELHI HIGH COURT] , the appellant have d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have not been paying service tax correctly on the properties rented out by them for commercial purpose. The show cause notices have been confirmed by the learned Adjudicating Authority whereunder the amount of service tax has been confirmed under Section 73 of the Finance Act, 1994 and penalties under Section 78 and 77 have also been confirmed. The appellant have approached the office of the Commissioner (Appeals) however they did not succeed there also. In view of the above facts, the appellants are before us against the above mentioned impugned orders-in-appeal. 2. Shri Punit Prajapati, learned Chartered Accountant appearing for the appellant have stated that the appellants have been paying service tax on some of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST-3 return that they are relying on the judgment of Hon ble Delhi High Court in the case Home Solutions Retails India Limited vs. UoI and therefore it was wrong on the part of the Adjudicating Authority as well as the appellate authority to confirm the demand by invoking extended time proviso and imposing penalty under Section 78 of the Finance Act, 1994. The learned Chartered Accountant submits that imposition of the penalties under Section 78 and 77 are not justified in the facts of the matter for the reason that firstly, the matter was under litigation at the higher forum and at the same time the appellant was filing regularly ST-3 returns indicating the entire taxable value with a note that certain service recipients are not paying se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been made payable by the Hon ble Delhi High Court vide order dated 23.09.2011 reported under 2011 (24) STR 129 (Delhi), the appellant have deposited the entire short paid service tax. In view of these facts, we are of the view that extended time proviso for demanding service tax because of the reason that fraud, suppression of facts, mis - representation or contravention of any provisions with intent to evade payment of service tax are not present in this case and the service tax has already been paid before issue of show cause notices. We are therefore of the view that the provisions of Section 78 of Finance Act, 1994 for imposition of penalties on the appellants are not sustainable. We therefore hold that impugned orders-in-app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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