2018 (10) TMI 1719 - AT - Service Tax

Tribunal Overturns Tax Demands Against Mall Owner, Cites Legal Uncertainties

The Tribunal set aside the demands for 'Renting of Immovable Property Service' and 'Management Maintenance & Repair Service' against the Mall owner. ... Levy of service tax - Renting of Immovable Property Service - stand taken by the appellant for not depositing service tax due to reason that the same was not collected from tenants was incorrect - Management Maintenance & Repair Service - HELD THAT:- During the relevant time there were various pronouncements by Hon’ble Constitutional Courts in respect of levy of service tax on ‘Renting of Immovable Property Service’. The malafide on the part of the appellant cannot be established for not charging service tax from the tenants and for not depositing the same. The appellant has relied in the case of M/S. JUMERA PROMOTORS AND DEVELOPERS PVT. LTD. VERSUS C.C.E. DELHI [2017 (10) TMI 967 - CESTAT NEW DELHI] wherein it was held that ‘Renting of Immovable Property Service’ has been subject matter of litigation in various judicial fora. In respect of demand of service tax on ‘Management Maintenance & Repair Service’ the entire service tax along with applicable interest was paid by the appellant before issuance of show cause notice. Therefore, as provided under Sub-section 3 of Section 73 of Finance Act, 1994 there was no need to issue show cause notice demanding the same. Appeal allowed - decided in favor of appellant. Issues:1. Validity of demand raised for 'Renting of Immovable Property Service'.2. Validity of demand raised for 'Management Maintenance & Repair Service'.3. Applicability of extended period of limitation for demand of service tax.4. Imposition of penalty under Section 78 of Finance Act, 1994.Analysis:1. The appellant, a Mall owner, was involved in selling and renting commercial shops at the Mall and providing Common Area Maintenance Service. The show cause notice raised demands for 'Renting of Immovable Property Service' and 'Management Maintenance & Repair Service'. The Original Adjudicating Authority confirmed the demands and imposed a penalty of Rs. 8.88 crores. The appellant contested, citing legal precedents and circulars acknowledging the uncertainty regarding service tax on renting services. The Tribunal found that the appellant acted in good faith based on legal developments and set aside the demand for 'Renting of Immovable Property Service', as malafide intent was not established. The demand for 'Management Maintenance & Repair Service' was also set aside as the tax and interest were paid before the show cause notice, as per Section 73(3) of the Finance Act, 1994.2. The Tribunal noted the legal uncertainties surrounding the taxation of 'Renting of Immovable Property Service' during the relevant period. Citing a previous Tribunal order, it concluded that the issue was not free from doubt and the appellant's non-collection of service tax from tenants was justified. The Tribunal held that the extended period for demand was not sustainable in this case. Regarding 'Management Maintenance & Repair Service', since the tax and interest were paid before the issuance of the show cause notice, the demand was set aside in accordance with the provisions of the Finance Act, 1994.3. The Tribunal considered the arguments presented by both parties and reviewed the legal developments and circulars related to the taxation of renting services. It found that the appellant's actions were in line with legal uncertainties and previous court decisions. The Tribunal held that the demand for 'Renting of Immovable Property Service' invoking the extended period was not valid and set it aside. Similarly, the demand for 'Management Maintenance & Repair Service' was set aside as the tax and interest were paid before the show cause notice, as required by the law.4. The Tribunal, after considering the submissions and records, concluded that the demands raised for 'Renting of Immovable Property Service' and 'Management Maintenance & Repair Service' were not sustainable. Therefore, the impugned order was set aside, and the appeal was allowed. The penalty imposed under Section 78 of the Finance Act, 1994 was not specifically addressed in the analysis provided.