2025 (7) TMI 1339 - AT - Service Tax

Time Limitation - suppression of facts or not - liability of appellant Government Department to pay service tax - Sale of space for advertisement - HELD THAT - The issue involved in the present case is no longer res integra; the case against the Delhi Transport Corporation 2015 (4) TMI 705 - DELHI HIGH COURT having identical set of facts involving Sale of space for advertisement by M/s Delhi Transport Corporation to the same contractor i.e. Pisces Communication Ltd. have decided the issue in favour of Revenue. Time Limitation - HELD THAT - In view of the provisions of Section 73 in view of the jurisprudence evolved over a period of time and in view of the facts and circumstances of the case it is found that there is nothing on record to show that the appellant- State Government Department have indulged in any suppression wilful mis-statement collusion etc. with intent to evade payment of taxes. Moreover as per the cases discussed above and the submissions of the appellants the appellant being a Government Department whether or not fitting into the definition of a person in terms of Section 65 (105) (zzzm) it cannot be alleged that they have an intent to evade payment of duty - Revenue has not made out any case for invocation of extended period of limitation against the appellant. Thus the appellants succeed on limitation. The appeal is allowed on limitation while holding against the appellants on merits.

Summary

ISSUES:

Whether the appellant, a Government Department, is liable to pay service tax on "sale of space for advertisement" services under Section 65(105)(zzzm) of the Finance Act, 1994 for the period prior to 01.07.2012.Whether the appellant qualifies as a "person" liable to pay service tax under the relevant statutory provisions prior to the amendment effective from 01.07.2012.Whether the extended period of limitation for recovery of service tax can be invoked against the appellant under Section 73 of the Finance Act, 1994.Whether the appellant's bona fide belief, based on contractual terms that the service tax liability was to be discharged by the contractor, exempts it from liability or penalties.Whether the payment of service tax by the contractor on "advertising services" discharges the appellant's liability for service tax on "sale of space for advertisement" services.Whether penalties under Sections 76, 77, and 78 of the Finance Act, 1994 are justified in the facts of the case.

RULINGS / HOLDINGS:

On liability, the appellant, being a Government Department, was held liable to pay service tax on "sale of space for advertisement" services as per Section 65(105)(zzzm); however, prior to 01.07.2012, the term "person" under the Finance Act did not include the State Government, thus no service tax was leviable on the appellant for that period.The definition of "person" in the General Clauses Act, 1897, applicable prior to 01.07.2012, excludes the State Government from the term "person"; therefore, the appellant was not liable to pay service tax until the Finance Act was amended on 01.07.2012 to include Government within the definition of "person".The extended period of limitation under Section 73 cannot be invoked against the appellant as there was no evidence of "fraud, collusion, wilful misstatement, suppression of facts or violation of the Act or Rules with an intent to evade payment" by the appellant; mere non-registration or delayed compliance without mens rea is insufficient to invoke extended limitation.The appellant's bona fide belief, based on contractual terms that the contractor would pay the service tax, does not absolve the appellant from statutory liability to pay service tax; however, in the case of a Government Department, no intent to evade tax was found, negating penalty imposition under Sections 78 and 80.Payment of service tax by the contractor on "advertising services" does not discharge the appellant's liability for service tax on "sale of space for advertisement" services, as the tax paid by the contractor related to a different taxable service; thus, the appellant's liability remains independent.Penalties under Sections 76, 77, and 78 were imposed due to failure to register and file returns timely; however, penalty under Section 76 was dropped by the Commissioner (Appeals), and penalties under Sections 78 and 80 were held not leviable on the Government Department due to absence of intent to evade tax.

RATIONALE:

The Court applied the statutory framework under the Finance Act, 1994, particularly Sections 65(105)(zzzm), 66, 68, 69, 73, 76, 77, and 78, and the Service Tax Rules, 1994, alongside the General Clauses Act, 1897 for the definition of "person" prior to 01.07.2012.Precedents including the Delhi Transport Corporation case and Supreme Court rulings on service tax liability and contractual shifting of tax burden were considered to clarify that while contractual arrangements may shift tax burden between parties, statutory liability remains with the service provider unless otherwise specified by law.The Court emphasized the necessity of mens rea (intent) for invoking extended limitation under Section 73, relying on judicial interpretations that suppression or omission must be deliberate to justify extended period invocation.The Court distinguished between Government Departments and Public Sector Undertakings, noting that the latter are treated differently under service tax law and jurisprudence regarding intent and penalty liability.Judicial interpretations of the term "person" under the General Clauses Act, 1897, and the Finance Act, 1994 amendments effective 01.07.2012, were pivotal in determining the appellant's liability for the relevant period.The Court recognized the absence of any statutory exemption for Government Departments from service tax liability, reinforcing that non-payment or non-registration attracts penalties unless justified by absence of intent to evade tax.