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2024 (2) TMI 822 - AT - Service TaxLevy of Service Tax - Business Auxiliary Services - it is the case of the revenue that the appellant was actively engaged in the business promotion of the main dealer and acting as a commission agent of the said main dealer - period October 2007 to March 2012 - HELD THAT:- From N/N, 6/2005-Service Tax dated 01.03.2005, as amended by N/N. 08/2008-S.T. dated 01.03.2008, it is clear that a service provider has the option not to avail the exemption benefit under notification 6 abid and, clearly, once such option is exercised by the service provider in a financial year, then the same shall not to be withdrawn during the remaining part of such financial year. The take-away from the above is that during the same financial year if option to avail or not to avail the exemption is exercised, such option shall hold good throughout the financial year. That means, since each year is to be considered independently, any exercise of the above option would end with that financial year and the same cannot act as a permanent block for all the subsequent years to come-in. Moreover from the facts available on record, the revenue has nowhere disputed the claim of the appellant that the aggregate value of the taxable service for the years under dispute is less than the threshold limit prescribed under the above notifications. It has been held by the Hon’ble Apex Court in COMMISSIONER OF INCOME-TAX, MADRAS VERSUS MAHALAKSHMI TEXTILE MILLS LIMITED [1967 (5) TMI 4 - SUPREME COURT] by a three judge bench, that when the grant of relief to a tax payer is justified on any ground, the Tribunal would be under a duty to grant that relief. Hence, the demand raised and confirmed in the impugned order cannot survive, for which reason the same requires to be set aside. The impugned order is set aside - appeal allowed.
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