2021 (11) TMI 694 - AT - Service Tax

Supreme Court affirms Tribunal's decision, dismissing Revenue's appeal based on doctrine of merger.

The Supreme Court dismissed the Revenue's appeal against the Tribunal's order, applying the doctrine of merger. The Tribunal's decision was affirmed, ... Valuation - tenancy agreement - doctrine of merger - inclusion of notional interest received on the security deposit taken - contravention to the Explanation (a) to Section 67 of FA - HELD THAT:- The issue decided in appellant own case M/S VIKHROLI CORPORATE PARK VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2016 (12) TMI 484 - CESTAT MUMBAI] where it was held that an agreement between the appellant and his customer provides for interest free security deposit, which is nothing but advance, Revenue cannot state that such security deposit will earn interest, and notional interest needs to be taxed. Since the Civil Appeal filed by the Revenue challenging the order of the Tribunal has been dismissed by the Hon’ble Apex Court stating that there are no grounds to entertain this appeal, the doctrine of merger applies the order of the Tribunal and gets merged in that of the Hon’ble Apex Court. There are no merit in the impugned order - appeal allowed - decided in favor of appellant. Issues:1. Confirmation of service tax demand, interest, and penalties under Sections 73(2), 75, 78, 76, and 77 of the Finance Act 1994.2. Valuation of taxable services concerning notional interest on security deposits.3. Appeal against the Commissioner's order based on settled issues.4. Tribunal's consideration of notional interest on security deposits in relation to renting immovable property services.5. Dismissal of Revenue's appeal by the Supreme Court and application of the doctrine of merger.Issue 1: Confirmation of Service Tax Demand, Interest, and Penalties:The Commissioner confirmed the demand of service tax, interest, and penalties under various sections of the Finance Act 1994 in two separate show cause notices. The penalties were imposed based on the provisions of amended Sections 78 and 76, with specific conditions for reduced payment. The appellant challenged this order before the Tribunal.Issue 2: Valuation of Taxable Services:The appellant was charging a refundable security deposit from tenants along with the license fee for renting immovable property. The valuation of taxable services requires the inclusion of the gross amount charged by the service provider. The appellant did not include the notional interest received on the security deposit, leading to an undervaluation of taxable services, contrary to Section 67's Explanation (a).Issue 3: Appeal Against Commissioner's Order:The appellant argued that the issue in question had been settled in a previous Tribunal order in their own case, which was affirmed by the Supreme Court. They contended that since the matter was no longer res integra, the appeal should be allowed in their favor. The Authorized Representative for the Revenue reiterated the Commissioner's findings.Issue 4: Tribunal's Consideration of Notional Interest:The Tribunal considered the issue of adding notional interest to the taxable value of services, citing a previous order in the appellant's case where it was held that interest-free security deposits should not be taxed for notional interest. The Tribunal found that the earlier decision covered the issue in favor of the appellant, and the Supreme Court's dismissal of the Revenue's appeal affirmed this position.Issue 5: Dismissal of Revenue's Appeal by the Supreme Court:The Supreme Court dismissed the Revenue's appeal against the Tribunal's order, stating that there were no grounds to entertain the appeal. The doctrine of merger applied, with the Tribunal's decision being affirmed by the Supreme Court. Consequently, the Tribunal found no merit in the Commissioner's order and set it aside, allowing the appellant's appeal with any consequential relief.This detailed analysis covers the confirmation of service tax demand, valuation issues, settled matters, the Tribunal's consideration of notional interest, and the impact of the Supreme Court's dismissal on the appeal outcome.