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2016 (3) TMI 856 - AT - Service TaxLiability of Service tax - Rendering of Business auxiliary service - Amounts received as 'commission agent' subject to a minimum of ₹ 1,10,000/- per month falls within the definition of 'business auxiliary service' in section 65 (19) of Finance Act, 1994 - Held that:- the claim of the appellant for immunity from taxability under section 65(105) (zzb) is not tenable. Therefore, the impugned order is modified by recomputing the tax liability along with appropriate interest. Seeking setting aside of penalty imposed under Section 78 - Invokation of Section 80 - Whether the appellant is a 'commercial concern' - Appellant contended that notwithstanding the title of the agreement, it had merely rented out space to M/s Style Spa and that the building space was owned by the kartha and co-parceners of the Hindu Undivided Family (HUF) as an asset which could not be considered as a commercial activity - Held that:- HUFs can also be commercial concerns is no longer res integra as decided by Tribunal in the case of re Infinity Credit. Therefore, for reasonableness of doubt that individuals may not be 'commercial concerns', section 80 of Finance Act, 1994 be invoked and penalty imposed under Section 78 is set aside. Cum-tax computation - Rental of immovable property - Appellant is the custodian of the goods intended for sale - Held that:- the remuneration that was to be made over to the appellant is based on quantum of sale. Guarantee of minimum payment of ₹ 1,10,000/- per mensem does not detract from the connection with sale. This is squarely within the ambit of 'commission agency' which became taxable for non-agricultural produce in the hands of provider of 'business auxiliary service' vide notification of 9 th July 2004. Appellant is eligible for exemption from February to July 2004. It is observed that, during the period of dispute, appellant was in receipt of only the minimum guaranteed amount of ₹ 1,10,000/-. The agreement also makes it clear that M/s Style Spa is responsible for discharge of tax liability. In view of these facts, the plea of the appellant for 'cum-tax' computation is justified. - Appeal disposed of
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