TaxTMI 
TaxTMI 
2022 (3) TMI 52
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....he demand of service tax on renting of immovable property service and paid the same during audit itself. This demand was on account of the rent which it had received by renting shops in the mall. The appellant is disputing the second demand. 2. Commissioner, Central Excise And Service Tax, Ghaziabad issued a show Cause notice dated 30.01.2015 to the appellant demanding service tax on both along with interest and further proposing to impose penalties. After following the due process, the Commissioner has by Order in Original dated 8.02.20162 confirmed the demand on both the services and imposed penalties. Aggrieved by the impugned order, the appellant filed this appeal. 3. We have heard learned Counsel for the appellant and learned Departmental Representative and perused the records. 4. As far as the demand of service tax amounting to Rs. 29,91,662/- on renting of immovable property service and interest thereon is concerned, the appellant submits that it had paid the service tax during audit itself. Later, it had also paid interest after the issue of the show cause notice. It is only contesting the penalty imposed upon it in respect of this amount. It is the assertion of th....
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....unt. He further submits that the appellant is not entitled to the benefit of Section 73(3) as the appellant had not disclosed that it had been rendering the service of renting of immovable property and therefore, the appellant's case is squarely covered by section 73(4). He reiterates the findings of the learned Commissioner in this regard which are as follows: "6. As regards short payment of Service Tax on renting of shops, it is found that Renting of Immovable Property was taxable service as defined under erstwhile Section 65(105)(zzzz) of the Finance Act, 1994 and it was admitted by the party that in a number cases Service Tax was not paid on aforesaid activity by them. It has been argued by the party that in view of provisions of Rule 9 of the POTA, Service Tax was payable on accrual basis till 30.06.2011 in respect of services which were completed before 30.06.2011 or in respect of services for which invoices were issued before the aforesaid date. It has been stated by the party that short paid Service Tax in regard to Renting of Immovable Properties, as indicated in the Show Cause Notice, was in respect of services for which invoices were issued prior to 30.06.2011. ....
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.... Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been 18 paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "thirty months" referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation.1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. Explanation 2. - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or....
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....ort services in the form of infrastructural support and operational or administrative assistance to such joint a venture. The appellant's share of Net Box Office collections is the consideration received for such services which are in the nature of Business support services and service tax is proposed to be charged on the services. Learned Commissioner has, in the impugned order, confirmed the demand as such along with interest invoking extended period of limitation and has also imposed penalty under Section 78 upon the appellant. Learned Counsel for the appellant submits that the arrangement between the appellant and the distributors has not resulted in emergence of an unincorporated joint venture. The transaction is one of transfer of copyright of the film temporarily by way of license/assignment to the appellant by the distributor which is not exigible to service tax. He further asserts that no service was rendered by the appellant. On the question as to whether any unincorporated joint venture has emerged, the appellant submits that the arrangement between Appellant and the distributors does not result in the emergence of unincorporated joint ventures. From CBEC's Circular No. ....
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....with a clear intention to screen the movie and not to either rent the theatre or create any partnership between the Parties. (x) Each member is not accountable to each other for their respective acts. (xi) Appellant and distributors do not act as principal and agent to one another, which is one of the features of a partnership/joint venture. (xii) Appellant does not act as an agent of the distributor while screening the film. (xiii) The conditions relating to cancellation of the show, unauthorized use of copying of film, loss or theft of the print etc. in the agreements with the distributors are in the nature of conditions to ensure that the copyright in the film is projected, and not infringed. (xiv) Other restrictions are nothing but the general/usual clauses in the agreement whereby the distributor, as the owner of the copyright, has taken the precaution to safeguard his goodwill and reputation in permitting Appellant to exhibit the film. (xv) Appellant never hands over the control or possession of the theatre building. (xvi) Gross revenue from sale of tickets is being recognized on the revenue side in the books (Pro....
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....e Ltd Vs. Commissioner of Service Tax, Hyderabad and it has also been decided in the following other cases: (a) M/s. PVS Multiplex India Pvt. Ltd. vs. Commissioner of Central Excise, Meerut-l - 2017 (11) TMI-156-CESTAT Allahabad; (b) M/s. Moti Talkies vs. Commissioner of Service Tax, Delhi-l - 2020 (6) TMI 87 - CESTAT New Delhi; (c) M/s. The Asian Art Printers (Sheila Theatre) vs. Principal Commissioner of Service Tax, Delhi-l - 2020 (12) TMI 1012 - CESTAT New Delhi; (d) Shri Vinay Kumar, Proprietor of M/s. Regal Theatre vs. Principal Commissioner of Service Tax, Delhi-l - 2020 (11) TMI 436-CESTAT New Delhi; (e) M/s. Golcha Properties Pvt. Ltd. vs. Principal Commissioner of Service Tax, Delhi-l - 2020 (11) TMI 137 - CESTAT New Delhi; and (f) Satyam Cineplexes Ltd. vs. Principal Commissioner of Service Tax, Delhi-l - 2020 (8) TMI 1222 - CESTAT, New Delhi 13. No case law has been brought before us where the share of the cinema owners in the Box Office collections is held to be exigible to service tax. Therefore, the issue stands decided that no service tax can be charged. The only additional twist in this case is the allegation....