Service tax upheld for professional photographer despite belief services were not taxable. Penalty deleted.

The court upheld the demand for service tax and interest against the appellant, ruling that the extended period of limitation was correctly invoked. Despite the appellant's belief that the services provided were not taxable, the court held that the appellant fell within the definition of a professional photographer, making them liable for service tax. The court found the appellant's failure to register earlier and subsequent audit justified invoking the extended period of limitation, leading to the dismissal of the appeal. The penalty imposed was deleted.

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Issues:
1. Whether the Tribunal was justified in upholding the demand and interest without considering the plea on the invocation of the extended period of limitationRs.
2. Whether the extended period of limitation was correctly invoked considering the belief of the assessee that the services provided were not taxableRs.

Analysis:

Issue 1:
The first issue raised in the appeal questions the Tribunal's decision to uphold the demand and interest without addressing the invocation of the extended period of limitation. The appellant argued that as an individual professional photographer, the services provided did not fall under taxable services as per Section 65(105)(zb) of the Finance Act. However, the Tribunal dismissed this contention.

Issue 2:
The second issue concerns the invocation of the extended period of limitation. The appellant claimed a bona fide belief that the services provided were not taxable, which should preclude the extended period of limitation. The period in question was between October 2002 and September 2006. Despite the appellant registering with the department in October 2005 and paying service tax until September 2006, a show cause notice was issued in 2008.

The appellant argued that being an individual photographer without a photography studio or agency, the services were not taxable. However, the court held that the appellant fell within the definition of a professional photographer as per Section 65(79) of the Finance Act. Therefore, Section 65(105)(zb) applied, making the appellant liable for service tax.

Regarding the extended period of limitation, the court found that the appellant's failure to register earlier and the subsequent audit revealed non-compliance, justifying the invocation of the extended period. The court distinguished a precedent cited by the appellant, emphasizing the lack of fraud or suppression in the present case.

In conclusion, both substantial questions of law were decided against the appellant, leading to the dismissal of the appeal. The court upheld the demand for service tax and interest, while also confirming the deletion of the penalty imposed.

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