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2013 (3) TMI 56 - CESTAT, NEW DELHIService tax demand on rental immovable property - invoking extended period under proviso to Section 73 (1) of the Finance Act, 1994 - also interest on the service tax beside penalty u/s 76 as well as Section 78 - period of dispute is from 2007-2008 to 2008-2009 - Held that:- Though "service in relation to renting of immovable property" had been brought within the service tax net w.e.f 1/6/07 by introducing Section 65 (105) (zzz) and as decided in Home Solution Retail India (2009 (4) TMI 14 - DELHI HIGH COURT) that mere renting of immovable property by itself cannot be regarded as service and would not attract service tax. It is only by retrospective amendment introduced w.e.f. 1/6/07 by Finance Act, 2010, that the renting of immovable property by itself became a taxable service neutralising the judgment of judgment of Hon'ble Delhi High Court. In these circumstances the appellant cannot be accused of suppressing the relevant information from the department as during the period of dispute there was doubt about the levy of service on the renting of immovable property till the dispute was put to an end by retrospective amendment made by Finance Act, 2010. As decided in Continental Foundation Jt. Venture [2007 (2007 (8) TMI 11 - SUPREME COURT OF INDIA] that when during the period of dispute there was doubt about interpretation of some provisions of law on account of conflicting judgments, which were later on resolved by a Larger Bench, the extended period under proviso to Section 11A (1) cannot be invoked - the penalty under Section 78 of the Finance Act, 1994 also would not be attracted, as the elements required for invoking longer limitation period under proviso to Section 73 (1) are the same as those required for imposing penalty under Section 78 of the Finance Act, 1994. Thus, the entire service tax demand is time barred - in favour of assessee.
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