9911796707
TMI Blog2015 (9) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... oad, Jalgaon and there is no legal partition or division amongst them. They entered into a joint agreement with M/s. Max New York Life Insurance Co Ltd, M/s HDFC Standard Life Insurance, M/s Oriental Bank of Commerce, M/s Axis Band (sic) and M/s Kotak Mahindra Bank, Jalgaon through joint Leave & License agreement for letting out the said premises. They collected rent and amenities charges from the commercial firms viz. M/s. Oriental Bank of Commerce, M/s Axis Bank and M/s Kotak Mahindta (sic) Bank during the period June-2007 to January -2012. The department viewed that the appellants were jointly engaged in providing the Services of Renting of Immovable Property as per Sub-Clause (ZZZZ) of Section 65(105) of Finance Act, 1994, which defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which was incorrect as there is no registered document of such partition. It is his submission that the respondent are not disputing that the services are covered under the category of "renting of immovable property". It is his submission that the agreement entered by the respondent and four brothers was composite contract for renting out the entire property and it is in use for commonly for business. He would submit that the benefit of notification no. 6/2005-ST dated 01/03/2005 is not applicable and is in respect of "qua-service" and not "qua service provider". The exemption granted by the first appellate authority under this notification is incorrect. It is also his submission that the first appellate authority had set aside the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading of the Order in Original, it is evident that the adjudicating officer has considered above named four persons as one person for determining tax liability and imposition of penalties without telling any legal basis for doing so. The appellants have contested the Order in Original mainly on the grounds that rented property belongs to four separate persons (all brothers) but the service tax has been demanded wrongly by the department from the appellants by clubbing the rent received by all the co-owners and, therefore, the demand off tax is not maintainable on this ground alone. In support they have produced a City Survey Extract as evidence regarding ownership of the rented property which shows that the said property was purchased in 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-09 and 2008-09 respectively which is below the exemption limit of eight lakhs and ten lakhs during the relevant period. The appellants were, therefore, not liable to pay service tax on the amounts received by them during these two years by virtue of Notification No. 6/2005-ST dated 01.03.2005. The appellant's case is also supported by the Tribunal's decision in the case of Dinesh K Patwa vs. CST, Ahmedabad which is referred in Para 3(ii) above. However, in the Financial Year 2009-10 and 2010-22, the receipt off rent by each appellant exceeded the statutory exemption limit of Rs. 10 lakhs and the appellants have paid service tax along with interest on their own before receipt of SCN. This fact is not disputed by the department a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 on their own initiative and there was no suppression of facts etc on their part with any intention to evade service tax cannot be denied. Considering all these facts, I agree with the appellant's contention that this case was squarely covered under sub section (3) of Section 73 which provided not to issue any notice under sub section (1) of Section 73 if the service tax not levied or paid was paid along with interest by the person concerned before service of notice on him and informed the Central Excise Officer of such payment in writing. Further in Explanation 2 of the said sub section it is also clearly provided that no penalty under any of the provisions of the Act or the Rules made there under shall be imposed in respect of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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