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TMI Blog2024 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... l Adjudicating Authority vide Order-in-Original dated 29.07.2022 except for demand on account of rental income. 2. The issue, in brief, is that the appellants were providing various services like mandap keeper services, restaurant services, hotel, renting of immovable property services, club or association services, beauty parlor services, dry cleaning services etc. In the course of audit and verification of Service Tax returns with the Profit & Loss Account it appeared to the Department that there was difference between total revenue declared in the Service Tax returns and figures appearing in Profit & Loss account. Therefore, based on this difference the Department worked out a short payment of service tax to the tune of Rs. 1,14,38,874/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count alone. He further analysed the income received on account of various heads like interest, discount, profit on sale of assets, contribution towards cess, cafeteria sale, sale of scrap etc., and after examining the entire books of accounts and explanations, he did not find them chargeable to service tax. 5. As regards income from renting of immovable property to educational institution, after considering the explanation given by the appellants, he came to the conclusion that the exemption for such services was withdrawn vide Notification No. 06/2014-ST dated 11.07.2014 and therefore to the extent of such rental income of Rs. 20,69,960/-, it was clearly not exempted during material time and ordered for re-computation of their service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to pay the same along with interest and they are also liable to penalty under Section 78. He also reiterated that they were aware about their liability as they had raised the invoices to the educational institution charging service tax and have collected also. In this regard, the Learned Advocate for the appellant countered the submissions of the Department that they had actually collected service tax as nothing of that effect has been brought in show cause notice or on record that they had actually collected the service tax. 8. Further, by way of additional submissions, vide letter dated 25.04.2024 the appellant have clarified that the amount of Rs. 20,60,690/- mentioned in Order-in-Appeal is for the full 12 months during 2014-15 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended period of limitation in terms of Proviso to Section 73(1) of Finance Act 1994 and also penalty under Section 77 and 78. 11. The mere perusal of the show cause notice shows that it has not brought categorically the grounds on which the demand was proposed. Further, it is an admitted fact that they were not liable to service tax prior to this demand period or subsequent to this demand in terms of extent notifications. Under this condition, there could have been a bonafide belief that they were not liable to pay service tax. Further, merely because they were raising the invoices in the same old fashion it does not make them defaulter who deliberately and intentionally, despite knowing the fact that they were liable to pay service tax, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, suppression of facts, contravention of any provision of the chapter or the rules made therein with intent to evade payment of service tax. I find that neither in the show cause notice nor in the Order-in-Original there has been any discussion as to how the proviso of Section 73 is applicable in the facts of the case and on the contrary and the facts of the case show that there was no deliberate or intentional non-payment of service tax and therefore invoking proviso to Section 73(1) is clearly bad in Law. 14. Therefore, I find that in the facts of the case, proviso to Section 73 is not applicable and therefore extended period cannot be invoked for demanding service tax on the rental income during the material period in 2014-15 as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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