2018 (8) TMI 1978

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....residential purpose. Show Cause Notice dt. 10/10/2012 was issued for non-payment of Service Tax on 'renting of immovable property service'. The Adjudicating Authority confirmed the demand of Rs. 1,07,109/- along with interest and imposed equal penalty under Section 78 and a penalty of Rs. 10,000/- under Section 77 of the Finance Act, 1994. On appeal before the Lower Appellate Authority, the Ld. Commissioner (Appeals) upheld the Adjudication Order and rejected the appeal. Hence, the present appeal before the Tribunal. 2. The Ld. Advocate appearing on behalf of the appellant submits that though renting of immovable property has been brought under the Service Tax net with effect from 01/06/2007, but its constitutional validity was ....

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.... (ii) Pushpm Pharmaceuticals, -vrs- C. C. E., reported in 1995 (78) ELT 401 (SC) (iii) Padmini Products, -Vrs- C. C. E., reported in 1990 (76) SCT 411 (SC) 4. The Ld. DR reiterates the findings of the Commissioner (Appeals). 5. Heard both sides and perused the appeal records. 6. I find that the appellant is not disputing the levy of service tax under renting of immovable property. However, challenging the demand being barred by limitation. Even though the show cause notice merely states that the service tax has not been paid by reason of wilful mis-statement and suppression of facts with an intent to evade payment of service tax, mere allegations in the show cause notice is not sufficient to allege suppression and mis-sta....

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....is not service. However, after amendment made by the Finance Act, 2010, the amended definition is held as service in the Second "Home Solutions Retailers" case. As a result, larger period of limitation is not invokable. Renting on immovable property has been a subject matter of litigation in various judicial forums. In fact, renting per se was held to be not taxable by the Hon'ble Delhi High Court in Home Solutions Retail (I) Ltd., 2011 (24) S. T. R. 129 (Del.) resulting in amendment, including retrospective amendment in the statutory provisions for the said tax entry. As such, the demand cannot invoke extended period as the issue was not free from doubt. In the present case, the whole demand is for extended period only. 8. The Cases cit....