TMI Blog2024 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... of Limitation - penalty u/s 78 of FA - HELD THAT:- On going through notification it is clear that the exemptions were not available during this period even though it was otherwise available prior to the period and even after the subsequent period. It is also found that the show cause notice has not given clear break up of various incomes which were received as income arising out of services provided by the appellant nor they have given any specific applicable rate of duty or exemption under which they were either liable to service tax or otherwise exempted. 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 lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Lalit Mohan Chandna, Advocate for the Appellant. Shri B. Sangameshwar Rao, Authorised Representative for the Respondent. ORDER M/s Shri Shakti Resorts Hotels Limited (herein after referred to as Appellant) have filed an appeal against Order-in-Appeal No.HYD-SVTAX-SCAP2- 67-23-24-ST, dated 03.07.2023. In the impugned order, Commissioner (Appeals) has, interalia, dropped the demand confirmed by the Original 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 service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) has examined the reasons given for the difference, item wise, during 2014-15, 2015-16 and 2016-17 and came to the conclusion that since the Department failed to consider that certain incomes were on account of payment of taxes such as Service Tax, VAT and Luxury Tax etc., and therefore he set aside the demand on account of income of Rs. 5,87,30,219/- out of Rs. 8,11,36,070/- on this 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 22 (Bom)] 7. On the other hand, the Learned DR reiterated the findings of the impugned order. He also concedes that no appeal had been filed by the Revenue against the order of the Commissioner (Appeals). However, he argued that in respect of demand on account of rental income during 2014- 15 when the exemption was clearly not available, the demand has to be sustained and the appellant is required 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax or otherwise exempted. They have only gone by the difference between profit loss account and ST-3 returns and have also alleged that the assessee has not disclosed the correct income and the short payment has come to light only because of the audit was conducted. Based on this, Department alleged that assessee had intentionally suppressed the facts and therefore liable for extended 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 73(A) in respect of such amount which was supposedly collected by them and not paid. Thus this ground also does not support Department for invoking extended period. 13. Proviso to Section 73 provides that the demand can be raised even beyond the normal period of 30 months, but within 5 years, where the service tax has not been levied or paid etc., by fraud, willful misstatement, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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