2021 (4) TMI 119 - AT - Service Tax

Tribunal upholds Service Tax demand against non-profit, exempts from Kendriya Vidyalayas, clarifies penalty imposition

M/s. Sikar Ex-Serviceman Welfare Co-operative Society Ltd. Versus Commissioner Central Excise and Service Tax, Jodhpur, Shri Shiv Pal Singh, Treasurer M/s. Sikar Ex-Serviceman Welfare Co-operative Society Ltd. Versus Commissioner Central Excise and Service Tax, Jodhpur, Shri Sohan Lal Dhaka, President M/s. Sikar Ex-Serviceman WelfareCo-operative Society Ltd. Versus Commissioner Central Excise and Service Tax, Jodhpur And Shri Ram Krishan, Secretary M/s. Sikar Ex-Serviceman Welfare Co-operative Society Ltd. Versus Commissioner Central Excise and Service Tax, Jodhpur

The Tribunal upheld the demand raised by the Department against the appellants for failure to pay Service Tax and file ST-3 Returns. It found the ... Failure to pay Service Tax - Man-power Recruitment or Supply Agency - argument of the appellant is that they being a welfare organisation working upon no profit fundamental may be exempted from Service Tax liability for providing the manpower services is not sustainable in the eyes of the laws - penalty on office bearers - extended period of limitation - HELD THAT:- The bare perusal of the provisions of Rule 2 (g) of Service Tax Rules, 1994 make it abundantly clear that there is no exclusion for any category of service providers from the ambit of the tax liability with respect to manpower recruitment and supply agency service the use of word “any person” in the afore mentioned definitions is sufficient to form the above opinion. Hence, the argument of the appellant that they being a welfare organisation working upon no profit fundamental may be exempted from Service Tax liability for providing the manpower services is not sustainable in the eyes of the laws. No benefit in terms of said argument can be extended in favour of the appellants. Extended period of limitation - HELD THAT:- There is nothing brought on record by the appellants to falsify the said presumption. It is also apparent from record that the appellants Society has received gross value amounting to ₹ 110410414/- for various service receivers against the impugned service provided by them. Accordingly their tax liability was ₹ 12617613/-. However, from the documents resumed, it was observed by the Department that liability only for an amount of ₹ 1100940 has been discharged by the appellants Society and they are still liable to pay an amount of ₹ 11516673/-. These observations which have nowhere been denied by the appellant corroborate the appellants knowledge about their liability but suppression of discharge thereof. Resultantly, the circumstances of present case are held to have an element of wilful concealment or suppression of liability which under Section 77 entitles the Department to have a period of 5 years instead of one year to serve a show cause notice. There is no denial of the Department for Kendriya Vidhyalays also to be the service recipient of the appellants and that such services are exempted under Notification No.6/2014. Notification No.6/2014 dated 11 July, 2014 amends Notification No.25/2012-ST dated 20th June, 2012. Services provided to an educational Institution by way of security or cleaning or house keeping services performed in such educational institutions have been exempted from the Service Tax liability - the demand to the extent of service tax liability qua the services rendered by the appellant Society to Kendriya Vidhyalayas is not sustainable and same is liable to be set aside. Penalty on the office bearers - HELD THAT:- In view of the definition of company in Section 3 of Companies Act that the appellants Society is not a Company but a Co-operative Society whose affairs are to be handled by a committee of office bearers having a life span of five years. It is also apparent from the record that the impugned period of demand has two different set of office bearers. Seen from any stretch of imagination the penalty cannot be imposed upon all of them - once the penalty is imposed upon the appellants Society, none other can be burdened with the penalty for the same omission as is alleged against the Society. Appeal allowed in part. Issues:1. Failure to pay Service Tax and file ST-3 Returns by the appellants.2. Alleged malafide and suppression of facts by the appellants.3. Demand raised by the Department based on Show Cause Notice.4. Applicability of Service Tax liability on a non-profit organization.5. Extended period of limitation for issuing Show Cause Notice.6. Exemption of Service Tax liability for services provided to Kendriya Vidyalayas.7. Imposition of penalty on the appellants and office bearers.Issue 1: Failure to pay Service Tax and file ST-3 Returns by the appellants.The Department observed that the appellants failed to pay Service Tax amounting to a specific sum for providing taxable services. The Show Cause Notice was issued, and the demand was confirmed in the Order-in-Original. The appellants contended that the demand was beyond a reasonable period and sought relief based on previous judgments. The Department argued that the demand was valid due to non-payment and non-filing of returns by the appellants.Issue 2: Alleged malafide and suppression of facts by the appellants.The appellants claimed that being a non-profit organization, malafide could not be attributed to them. They argued against the suppression of facts and extended the limitation period for the Show Cause Notice. The Department countered, stating that the appellants failed to provide necessary information and file returns, justifying the demand in the order.Issue 3: Demand raised by the Department based on Show Cause Notice.The Tribunal found that the appellants admitted to providing taxable services and being registered under Service Tax. The demand was upheld, considering the non-payment of Service Tax despite registration and the liability incurred by the appellants.Issue 4: Applicability of Service Tax liability on a non-profit organization.The Tribunal clarified that being a welfare organization did not exempt the appellants from Service Tax liability for providing manpower services. The definitions under the Finance Act established the liability irrespective of the organization's profit motive.Issue 5: Extended period of limitation for issuing Show Cause Notice.The Tribunal held that the Department rightfully invoked the extended limitation period due to the appellants' registration under Service Tax since 2004 and their failure to file returns. The suppression of facts regarding tax liability justified the extended period for the Show Cause Notice.Issue 6: Exemption of Service Tax liability for services provided to Kendriya Vidyalayas.The Tribunal acknowledged the exemption under Notification No.6/2014 for services provided to educational institutions like Kendriya Vidyalayas. The demand related to services rendered to Kendriya Vidhyalayas was set aside based on this exemption.Issue 7: Imposition of penalty on the appellants and office bearers.The Tribunal upheld the penalty on the appellants but set aside the penalties on the office bearers. Citing relevant case law, the Tribunal clarified that only one penalty could be imposed either on the organization or its office bearers for the same omission.This detailed analysis of the judgment covers all the issues involved, providing a comprehensive overview of the Tribunal's findings and decisions on each matter raised during the proceedings.