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TMI Blog2013 (4) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Corporation is a statutory body and owns number of properties both movable and immovable, vacant land, markets, chandais, etc. and it has leased or given on licence the properties on monthly or annual basis for one year or for three years by tender-cum-public auction and the same will be renewed as per the prevailing Government Orders and the lease amount or licence fee would be paid to the Corporation. While so, Service Tax was introduced on renting of immovable property service with effect from 01.6.2007 by the amendment of Finance Act, 1994 by Finance Act, 2007. Further by the amendment in the year 2010, certain other immovable properties were also included for payment of service tax with effect from 01.06.2007. The respondent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. According to the petitioner, as per the amount payable by the lessees and licencees the service tax payable by the petitioner is only Rs. 48,34,321/- and the respondent did not have any material to demand service tax of Rs. 1,06,05,791/- and to impose a penalty equal to the said amount. Based on the income mentioned in the trial balance sheet as the income from the immovable properties rented out to various third parties, the respondent passed the impugned order. The income mentioned in the trial balance sheet include property tax and income from some of the immovable properties like toilet, etc., which are excluded from the purview of service tax on rent from immovable properties and therefore, the calculation made by the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad also issued instructions to the concerned Assistant Commissioners to get the service providers registered for the services rendered under the impugned service and also to collect service tax from them. The details furnished by the petitioner had indicated that it had received huge amounts towards rent from the tenants, but not proof was furnished for the amounts so received. 5. It is further stated that as per Section 65(90a) of the Finance Act, 'renting of immovable property service' includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce, but does not include renting of immovable property by a religious body or to a religious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions. Mr.Arvind Pandiyan, learned Additional Advocate General assisted by Ms.V.M.Velumani, learned Special Government Pleader, would submit that the respondent demanded service tax without jurisdiction and without applying his mind and he has taken into account the income mentioned in the trial balance sheet as the income from the immovable properties rented out to various third parties, which includes property tax and income from some of the immovable properties, which are excluded from the purview of service tax on rent from immovable properties. He further submits that the respondent acted without jurisdiction and hence the statutory appeal has not been filed and therefore, the writ petition is maintainable. 7. Mr.N.Senthilkumar, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand an amount of Rs. 79,33,135/- (Rupees seventy nine lakhs thirty three thousand one hundred and thirty five only) [Service Tax Rs. 77,02,073/-, Education Cess Rs. 1,54,041/- and Second & Higher Education Cess Rs. 7,021/-] for the period from 01.6.2007 to 31.3.2010 and Rs. 26,72,656/- (Rupees Twenty six lakhs seventy two thousand six hundred and fifty six only) [Service Tax Rs. 25,94,812/- + Ed. Cess Rs. 51,896/- - SHE Cess Rs. 25,948/-] for the period from 01.04.2010 to 31.03.2011 from M/s.Salem Municipality, Suramangalam Ward, Salem, being the service tax for the services rendered under the category of "Renting of immovable property service" under Section 73(2) of the Finance Act, 1994; (iii) I demand appropriate interest under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court would be redressed. 9. Law is well settled that in case of an order passed by an authority, who has no jurisdiction to pass such order, this Court can intervene and set right the things exercising the power conferred under Article 226. But, the case of the petitioner is that the respondent has wrongly calculated service tax based on the amount shown in the trial balance sheet and included the property tax and income from other sources, which are excluded from the purview of service tax and also imposed penalty equaled to service tax and these are merits of matter, which can be looked into by the Appellate Authority and hence this writ petition is not maintainable in view of the effective alternate remedy available and the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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