Anita Singh, Pritam Singh, Abhishek Singh, Prerna Singh Versus CGST, CC & CE, Dehradun
Service Tax
2018 (6) TMI 810 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 30-5-2018
Service Tax Appeals No. 50976, 50989-50991 of 2015 – Final Order No. 52131-52134/2018
Service Tax
Shri Anil Choudhary, Member (Judicial) And Shri C.L. Mahar, Member (Technical)
Shri Rajesh Gupta, C.A. – for the appellants.
S/Shri A.K. Singh and R.K. Manjhi, Authorized Representative (DRs) – for the Respondent.
Per. C.L. Mahar :-
The brief facts of the matter are that all the four appellants are co-owners of a property situated at 24-A, New Cantt. Road, Dehradun. All the four owners are title holders of the property and have given the said property on rent to M/s ICICI Bank Ltd. on monthly rent basis. The tenant bank is making payment of the rent individually to all the four owners of the above property by issuing separate cheques/demand drafts in their individual names. The Depart
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15/11/2006″.
2. It can be seen that the service tax has been confirmed by the Original Adjudicating Authority against the above-mentioned four appellants only on the basis that the said property has jointly been leased out to M/s ICICI Bank Ltd. by the co-owners vide lease deed agreement dated 15/11/2006, hence, the learned Commissioner (Appeals) has held that since all the above applicants provided “the service of renting of immovable property service collectively to a single service receiver M/s ICICI Bank Ltd. thus liability to service tax should be discharged collectively on the amount of rent received by them even though they have received the rent amount separately in their accounts. Therefore, their plea that all the co-applicants hold separate PAN number and therefore they should be treated as a separate service providers does not hold good”.
3. We have heard both the sides.
4. It can be seen that the ownership title of the property which is on lease with M/s ICICI Bank Ltd.
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limit of Rs. 10 lakhs the service tax will be leviable. In this regard, we find that the learned Advocate for appellant has relied upon following case laws :-
(i) Anil Saini vs. CCE, Chandigarh – I – 2017 (51) S.T.R. 38 (Tri. – Chan.) ;
(ii) CCE & ST, Allahabad vs. Luxmi Chaurasia – 2017 (49) S.T.R. 541 (Tri. – All.) and
(iii) CCE, Nasik vs. Deoram Vishrambhai Patel – 2015 (40) S.T.R. 1146 (Tri. – Mumbai).
The relevant extract of Anil Saini vs. CCE, Chandigarh – I (supra) is reproduced here below :-
“3. After hearing both the sides, considering the fact that the issue has already been dealt by this Tribunal in the case of CCE, Nasik v. Deoram Vishrambhai Patel reported in 2015 (40) S.T.R. 1146 (Tri.-Mumbai), wherein this Tribunal observed as under :
6. We have considered the submissions made by both sides and perused the records. The issue that needs to be decided in this case is whether the respondent and his brothers are to be treated as association of persons or other vise
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by clubbing the rent received by all the co-owners and, therefore, the demand of tax is not maintainable on this ground alone. In support they have produced a City survey Extract as evidence regarding ownership of the rented property which shows that the said property was purchased in 2003 and is owned jointly by all the four co-owners. Further, the lease agreements with M/s. Max New York Life Insurance Co. Ltd., Oriental bank of Commerce, Axis Bank, Kotak Mahindra Bank and HDFC Standar Life Insurance Ltd. are also entered into by the appellants in their individual capacity, as per SCN also, all four co-owners have obtained separate Registration Certificate on 10-4-2012 and all the four co-owners individually paid their service tax liability along with interest on 14-2-2012. Thus, the ownership of the Property and providing of taxable renting of immovable Property by the four appellants in this case is in their individual capacity and, therefore, their tax liability should have been d
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by them during these two years by virtue of Notification No. 6/2005-S.T., dated 1-3-2005. The appellant's case is also supported by the Tribunal's decision in the case of Dinesh K. Patwa v. CST, Ahmedabed which is referred in para 3(ii) above. However, in the Financial Year 2009-10 and 2010-22, the receipt of rent by each appellant exceeded the statutory exemption limit of Rs. 10 lakhs and the appellants have paid service tax along with interest on their own before receipt of SCN. This fact is not disputed by the department also and no additional tax liability has been worked out for the said period in OIO.
6.4 Since the appellants were individually liable to pay service tax and eligible for the exemption under general exemption Notification 6/2005-S.T., dated 1-3-2005 during the period 2007-08 and 2008-09, no service tax was payable during the said period. Hence, the question of penalty under Section 76 for the said period does not arise. For the subsequent period i.e. 2009-10 & 20
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for the years 2009-10 and 2010-11 on their own initiative and there was no suppression of facts etc. on their part with any intention of evade service tax cannot be denied. Considering all these facts, I agree with the appellant'0s contention that this case was squarely covered under sub-section (3) of Section 73 which provided not to issue any notice under sub-section (1) of Section 73 if the service tax not levied or paid was paid along with interest by the person concerned before service of notice on him and informed the Central Excise Officer of such payment in writing. Further in Explanation 2 of the said sub section it is also clearly provided that no penalty under any of the provisions of the Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. Hence, in fact no SCN was required to be issued in this case for recovery of service tax and imposition of penalty and even when it has been issued, no penalty
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