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TMI Blog2023 (6) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... t, however, did not impose any penalty invoking section 80 of the Finance Act, 1994. Aggrieved by the order of not imposing any penalty, the department has come in appeal before the Tribunal. 2. The learned AR Shri R. Rajaraman appeared and argued for the department. It is submitted by the learned AR that there are no grounds for waiving the penalties under sec. 76, 77 and 78 proposed in the Show Cause Notice. The leviability of service tax under the category of renting of immovable property service was under confusion during the initial period when it was introduced in the year 2007. Various service providers including landlords and tenants filed writ petitions before various High Courts. The Government vide Finance Act, 2010 amended sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of service tax. The learned AR submitted that once the section has been amended in 2010 retrospectively with effect from 1.6.2007, such contentions put forward by the respondent ought not to have been considered by the adjudicating authority. Further, despite many reminders, the respondent has furnished details only on 28.6.2011. After the amendment, there was no confusion with regard to the payment of service tax under the said category of renting of immovable property. The respondent ought to have paid service tax. The waiver granted under sub-section (1) of section 80 of the Act is not applicable to the facts of the case. 4. To support the contentions, the learned AR relied upon the decision in the case of Commissioner of Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax has been confirmed under the category of 'Renting of Immovable Property Service' as defined under sec. 65(105)(zzzz). The said services were made taxable with effect from 1.6.2007. Several litigations were filed before various High Courts challenging the levy of service tax on renting of immovable property service. In the case of Home Solutions Retail India Ltd. Vs. Union of India reported in 2009 (14) STR 433 (Del.), the constitutional validity to levy service tax on renting of immovable property was challenged. The Hon'ble High Court held that the activity of renting of immovable property is not liable to levy of service tax but the services in relation to renting of immovable property is taxable. Thereafter, the Government bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons if the assessee proves that there was reasonable cause for the said failure". 9. In the present case, it cannot be disputed that there was confusion with regard to the levy and liability to pay the service tax under the category 'renting of immovable property service'. There were several litigations pending before various forums. The amendment brought forth in section 65(105)(zzzz) vide Finance Act, 2010 made the provisions applicable retrospectively. Later, the Government also introduced sub-section (2) of section 80 granting time for the assessees to pay up the liability along with interest. However, sub-section (2) of section 80 does not bar the application of sub-section (1) of section 80. The Commissioner has recorded that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y pointed out by learned Consultant, the original authority ruled out intention on the part of the assessee to evade Service Tax vide para 12 of its order. This finding of the original authority, which is equivalent to saying that the assessee had been maintaining a bona fide belief that they were not liable to pay Service Tax on the services in question, was not challenged by the Revenue and, therefore, it was not open to learned Commissioner (Appeals) to substitute his 'satisfaction' for the 'satisfaction' recorded by the lower authority for purposes of Section 80 of the Finance Act. Once it was found by the original authority that there was reasonable cause for the failure of the assessee to pay Service Tax in time, the proposal to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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