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2015 (2) TMI 147 - AT - Service TaxPenalty u/s 76 - Renting of immovable property - Held that:- Penalty under Section 76 is imposable for failure to pay Service Tax, Section 80 (1) grants waiver from the payment of penalty if the assessee proves that there was reasonable cause for the said failure. In the present case, no doubt there was confusion regarding leviability of Service Tax on the renting of immovable property service due to various court decisions. The matter has still not attained finality in view of the decision pending in the Hon'ble Supreme Court in the case of Retailers Association of India [2011 (10) TMI 12 - Supreme Court of India]. However, at the same time, the Hon'ble Supreme Court did not grant stay unconditionally. It only granted the conditional stay. As the recipient in this case did not observe conditions of the stay, the interim order of the Hon'ble Supreme Court does not help the appellant who is the service provider in this case. Further, Government gave the benefit of waiver of penalty under Section 76 if the tax was deposited before 26.11.2012 under Section 80(2) of the Finance Act, 1994. The appellant paid the Service Tax on 10.12.2012 i.e after two weeks from the expiry of the period specified under Section 80(2). Clearly the waiver of penalty cannot be extended to the appellant in view of Section 80(2) because the Government had given enough opportunity to the appellant to deposit the tax before the date specified under Section 80(2). It is clear that normally the scheme is not applicable when the tax had already been paid before the introduction of the scheme. At the same time, Government has left a window open for taking a lenient view in some circumstances under Section 80 of the Finance Act, 1994. - appellant deserves a lenient view in the matter. - penalty under Section 76 of the Finance Act, 1994 is waived. The impugned order is set aside - Decided in favour of assessee.
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