2018 (2) TMI 1568 – RAJASTHAN HIGH COURT – [2017] 1 GSTL 34 (Raj), 2018 (9) G. S. T. L. 377 (Raj.) – Penalty u/s 76 and 78 – suppression and evasion of Service Tax – Whether the Tribunal was justified in passing a contradictory order and thereby deleting the penalty only on the ground of non receipt of tax by the assessee from the service receiver?
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Held that: – It is observed that the assessee has not received tax from the Rajasthan Housing Board which is a Government Corporation, therefore, the assessee cannot be penalised for non receipt of the tax from Rajasthan Housing Board. He has also not received tax and paid the same with interest, therefore, if penalty is imposed, he would have no other option but to close its business.
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The view taken by the tribunal is not only justified but it is the only view which can be taken – appeal dismissed – decided against Revenue. – D.B. Central/Excise Appeal No. 129/2017 Dated:- 8-12-2017 – MR. K. S. JHAVERI AND MR. VIJAY KUMAR VYAS
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ment with Rajasthan Housing Board, Jaipur for Developing, Designing and Marketing of Raj Aangan Scheme (NRI Scheme) for Rajasthan Housing Board, Jaipur. The above referred activities of M/s. SPPL, Jaipur seemed to be clearly fall under the category of Real Estate Consultant/Consulting Engineer/Management Consultant/Business Auxillary services. 3.1 A search of the office premises of the appellant at 68 Gopal Bari, Jaipur was conducted on 6.12.2006. During the search it was found that they were engaged in providing the services of Designing, Marketing and Management to Rajasthan Housing Board and had not paid service tax on gross amount charged from the customers. Moreover, the appellant had not obtained service tax registration. 4. Counsel for the appellant has taken us to the order of the first authority and contended that the provisions of Section 174(2) of the Central Goods & Service Tax Act, 2017 is applicable from 1.7.2017 and not prior thereto. 5. However, we have gone through
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resh decision. 9. In the second proceedings, more particulars alongwith supporting documents were submitted by the appellant which were taken on record and the decision was arrived at. We could see from the impugned order in the second proceedings that the service tax demand was confirmed under category of Real Estate Consultant. 10 We have perused the terms of agreement. Clause 3 of the agreement is as follows:- SCOPE OF ACTIVITIES/WORKS AND FEES/REUMNERATION THEREOF 3.1 The broad scope of activities/work of Siddha (which are more elaborately recorded hereafter) shall be as follows:- (a) Project conception and design. (b) Architectural, landscaping and structural design. (c) Project construction management activity. (d) Marketing related activities including sales (e) Legal matters. 11. The statutory definition of Real Estate Agent is as below:- Section 65(88) of the Finance Act, 1994 defines the words Real Estate Agent: Real Estate Agent means a person who is engaged in rendering any
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eceive the tax amount from their clients, the incidence of tax liability is apparently in the knowledge of the appellant and they have not got themselves registered with the Department, neither filed periodical returns. In the facts of this case, we find that a demand for extended period in terms of proviso to Section 73(1) is rightly invokable. Further, we note that the appellants strongly pleaded for waiver of penalty in terms of Section 80 of the Finance Act, 1994. The appellants though raised bill with service tax, have not received the tax amount from the Rajasthan Housing Board. This is being categorically asserted by the appellants and there is no contrary finding by the lower authority. As such, we find there is a reasonable cause for non payment of service tax by the appellants and accordingly, the provisions of Section 80 can be applied for waiver of penalty imposed under Section 76 and 78. 6. It is observed that the assessee has not received tax from the Rajasthan Housing Bo
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