TaxTMI 
TaxTMI 
2022 (3) TMI 52
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....y 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 the learned Counsel for the appellant that the appellant should ....
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....ring 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. In this regard, I find that the party have not produced any documentary evidence to prove that short payment of Service Tax was in respect of services whic....
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....ntral 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 short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or ....
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....ess 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. 148/17/2011-S.T. dated 13.12.2011 and the Supreme Court decisions in the case of New Horizons [ 195 SCC (1) 478: 1994-TMI-836861] and Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Anr., [(2008)10 SCC 345] the following cumulative factors, no single....
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....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 (Profit & Loss Account) of Appellant. (xvii) The amount paid to the Distributors is being booked as Direct Expense (Film Hire Charges) in the books (Profit & Loss Account) of Appellant. (xviii) Responsibility for payment of entertainment and other taxes, payment of electricity and other overheads, any risk to audience and civil or criminal liabilities for any acts of omission or commission during the screening of the mov....
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....T 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 that a joint venture has been created and that joint venture is an unincorporated business entity and the service has been rendered by the appellant to such a business entity and that business entity is paying the appellant for allowing the business entity to use the appellant's premises and other support. We do not find anything in the records to indicate that there was an express or implied agreement to form a joint venture. There is no joint ownership or control of the property the appellant is the o....