2018 (5) TMI 981 – CESTAT MUMBAI – TMI – Penalty u/s 78 – service tax along with interest were paid before show cause notice – construction of residential complex service – Held that: – it is well known fact that the builders in all over India challenged the levy of service tax on construction of residential complex – it cannot be said that the appellants had any mala fide intention, particularly for the reason that the appellants have not suppressed the value as they have declared in the books of account.
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Relying on the fact that the matter was under litigation therefore, penalty needs to be waived – appeal allowed – decided in favor of appellant. – APPEAL Nos. ST/85456,85458-85460/2018 – A/86105-86108/2018 – Dated:- 20-4-2018 – Mr
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ion to evade service tax as the entire transactions are appearing in the books of account. The service tax was not paid because the validity of the levy of service tax on construction of residential complex was under controversy. They are member of Maharashtra Chamber of Housing Industry who challenged the validity of the levy before the Hon ble High Court and the Hon ble Bombay High Court has given the judgment in 2012. Subsequently, the matter was challenged before the Hon ble Supreme Court, which is pending. In these facts, the intention to evade the service tax does not establish. Hence the penalty under Section 78 was not imposable. 3. Shri Atul Sharma, learned Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates
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t, it cannot be said that the appellants had any mala fide intention, particularly for the reason that the appellants have not suppressed the value as they have declared in the books of account. This Tribunal time and again in identical issue waived the penalty. Relying on the fact that the matter was under litigation in the case of MCHI before the Hon ble Bombay High Court, therefore, in the present case also, the same benefit can be extended to the appellants. Accordingly, I set aside the penalty imposed under Section 78 of the Finance Act. The impugned order is modified to the above extent. 5. The appeals are allowed in the above terms. (Pronounced in court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmana
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