2018 (4) TMI 963 - AT - Service Tax

Appellant wins service tax challenge: Penalties set aside, benefit under Section 80 granted

M/s Salahuddin Khan Versus Commissioner of Central Excise & Service Tax, Allahabad

The Tribunal found in favor of the appellant in the case concerning the challenge to the levy of service tax under the 'Renting of Immovable Property' ... Penalty - service tax with interest paid on being pointed out - benefit u/s 80 - Held that: - there is no contumacious conduct on the part of the appellant - the appellant has deposited, on being pointed out, as early as 07.02.2011 amount of ₹ 32,10,487/- which was more than the tax demand of ₹ 26.62 lakhs - there is reasonable cause for not depositing of service tax and as such the appellant is entitled to the benefit under Section 80 of the Finance Act - appeal allowed - decided in favor of appellant. Issues:1. Challenge to levy of service tax under 'Renting of Immovable Property' category.2. Allegation of non-filing of returns and subsequent show cause notice.3. Imposition of penalties under Sections 76, 77, and 78 of the Act.4. Validity of show cause notice and invocation of extended period of limitation.5. Contumacious conduct and deposit of service tax by the appellant.6. Benefit under Section 80 of the Finance Act.Analysis:Issue 1:The appellant challenged the levy of service tax under the 'Renting of Immovable Property' category, citing a previous judgment by the Hon'ble High Court of Delhi. The law was subsequently amended to restore the chargeability of service tax under this category, with retrospective effect from June 1, 2007.Issue 2:The appellant was informed to deposit service tax, which was done promptly. However, a show cause notice was issued later, alleging non-filing of returns and proposing a demand for unpaid service tax, interest, and penalties. The original authority confirmed the demand but observed no malafide intention on the appellant's part.Issue 3:The learned Commissioner (Appeals) imposed penalties under Sections 76, 77, and 78 of the Act, leading to an appeal before the Tribunal by the appellant.Issue 4:The appellant contended that the show cause notice was invalid and time-barred, as taxes were deposited before the notice was issued. The appellant also argued that penalties were unjustified as there was no intentional evasion of service tax.Issue 5:The appellant's counsel highlighted that there was no collection of service tax by the appellant, and the taxes were promptly deposited upon notification, indicating no contumacious conduct.Issue 6:After considering the contentions, the Tribunal found no contumacious conduct by the appellant. The appellant had promptly deposited the tax amount, including interest, and was entitled to the benefit under Section 80 of the Finance Act. Therefore, the Tribunal set aside the Order-in-Appeal and restored the Order-in-Original, allowing the appeal with consequential relief.