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2019 (6) TMI 515 - CESTAT KOLKATAImposition of penalty u/s 78 of FA - rental income from immovable property - Service tax paid on being pointed out - intent to evade present or not - HELD THAT:- The appellants have deposited service tax on being pointed out by the Department. Regarding payment of service tax on rendering service of renting of immovable property, they expressed that they had bonafide belief that the service tax was not payable as Hon’ble Delhi High Court has stayed the provisions. It was through retrospective amendment only that the tax was made applicable. It is clear that the appellants have made a good case for waiver of penalty in respect of service of renting of immovable property. There are no ingredients of misstatement, suppression of facts etc. with an intent to evade payment of service tax. In respect of imposition of penalty relating to delay in payment of service tax on the service of renting of immovable property, no mala fides are proved and the issue being of interpretational nature, penalty is not imposable. There is no case of leviability of penalty under Section 78 of the Finance Act, 1994. Penalty set aside - appeal allowed - decided in favor of appellant.
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