LIVEWELL ESTATES PVT. LTD. Versus CCT, Guntur GST
Service Tax
2018 (10) TMI 660 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 5-10-2018
ST/30687/2018 – A/31261/2018
Service Tax
Mr. P.K. Choudhary, MEMBER (JUDICIAL)
For the Appellant : Shri M.V.S. Prasad, Advocate
For the Respondent : Shri A.V.L.N. Chary, Superintendent /AR
ORDER
PER: MR. P.K. CHOUDHARY]
1. The facts of the case in brief are that the appellants M/s Livewell Estates Pvt. Ltd., Vijayawada are registered with Service Tax under the category of 'Renting of Immovable Property Service' and 'Construction of Residential Complex Service'. Appellant gave its building on lease to M/s Chermas Exquisite Limited from 01.07.2008 to 31.05.2026 vide lease deed dated 16.06.2008. Consequent to audit of appellant's books of accounts in 2013, show cause notice dated 24.08.2016 was issued proposing to demand interest of Rs. 6,46,150/- for the period 01.06.2008 to 30.09.2011. The original authority confirmed
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ment was upheld by Hon'ble High Court of Bombay vide their order dated 04.08.2011 as reported in [2011(23)S.T.R-561 (Bom.)]. The decision of the Hon'ble High Court of Bombay was challenged before Hon'ble Supreme Court by certain parties, other than the appellant and is pending for final decision. The Apex Court gave an interim order dated 19.10.2011 in respect of the parties to the appeal before it, directing predeposit by certain specified dates. It is the submission of Ld. Advocate that though the appellant herein was not a party to the interim order, the service tax due for the period 1.6.2008 to 30.9.2011, amounting to Rs. 21,43,717/- was paid in instalments and finally by 12.06.2012. Ld. Advocate further argued that the appellant was under the bonafide belief that they are not required to pay the service tax in view of the order of Hon'ble Delhi High Court and subsequently pendency of appeals challenging the retrospective amendment to section 65(105)(zzzz) in 2010 before the
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,57,287/-
(c) 3rd instalment on 29.02.2012 Challan No. 00008
Rs. 3,57,285/-
Intimation given to JRO on 09.03.2012.
Rs.10,71,859/-
Appeal No. ST/30687/2018 (d) Total amount due upto 30.09.2011 ..
Rs. 21,43,717/-
(e) 50% of service tax paid in three instalments ..
Rs.10,71,859/-
(f) Balance 50% tax paid on 12.06.2012
Rs.10,71,859/-
Second Intimation given JRO on 18.06.2012.
5. I find that after receiving the intimation on 18.6.2012, the department should have determined the interest payable and communicated to the assessee and if the assessee did not pay the same, they had one year period for issuance of show cause notice. In this case, without intimating to the assessee that he is liable to pay interest and they should pay the same, the Officers proceeded to issue show cause notice straightaway.
Section 73(3) contemplates non issue of show cause notice in the event of an assessee paying full amount of service tax with interest. When the section and provisos are read togethe
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