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2023 (9) TMI 931 - AT - Service TaxLevy of penalty - entire service tax liability along with interest paid - Renting of immovable property service - constitutional validity of the levy is yet to be decided - dispute is interpretational in nature - applicability of section 80 of the Finance Act, 1994 - HELD THAT:- Renting of Immovable Property Services have been brought under the purview of Service tax with effect from 1.6.2007. Hon'ble High Court of Delhi, in the case of HOME SOLUTIONS RETAILS LTD VERSUS UOI AND ORS [2010 (5) TMI 3 - DELHI HIGH COURT] held that renting per se cannot be regarded as service. Hence, no service tax could be levied on the activity of renting per se. Subsequently changes made by the Finance Act, 2010 in respect of enlargement of scope of Renting of Immovable Property Services' was challenged by the assessees’ PAN India and during the impugned period, the courts had taken a view that the amendment was unconstitutional and had even granted a stay in this regard. Further, the Apex Court vide its order in UNION OF INDIA AND ORS. VERSUS UTV NEWS LTD. [2018 (5) TMI 1367 - SUPREME COURT], while examining a question directly relatable to the scope and ambit of Entry 49 of List II of the Seventh Schedule to the Constitution of India dealing with “Taxes on lands and buildings” has categorically ordered all the cases on this issue to be deferred until the matter before the nine judges Bench in MINERAL AREA DEVELOPMENT AUTHORITY ETC. VERSUS M/S STEEL AUTHORITY OF INDIA & ORS [2011 (3) TMI 1554 - SUPREME COURT] is decided. In a case where the constitutional validity of the levy is yet to be decided the dispute is interpretational in nature. Hence reasonable cause has been made out for delayed payment of duty. In fact, due to legal complexities, the appellants are in the second round of litigation before this Tribunal. The part of the impugned orders passed by the Commissioner of Central Tax (Appeals), Coimbatore relating to penalties alone are set aside and the appeals are allowed.
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