Whether late fee is payable for delay in filling ‘NIL’ return?

PJ/CASE LAW/2014-15/2301

Case:- SUCHAK MARKETING PVT. LTD. VERSUS COMMR. OF SERVICE TAX, KOLKATA

Citation:- 2013 (30) S.T.R. 593 (Tri. - Kolkata)

Brief facts:-Briefly stated facts of the case are that the appellants are engaged in providing the taxable services under the category of ‘construction in respect of commercial or industrial building and civil structure services’. For rendering the said services, the appellants were registered with the Service Tax Department. The appellants had filed six ‘nil’ returns in ST-3 form for the period from September, 2005 to March, 2008 on 18-11-2008. Consequently, show-cause notice was issued to them proposing penalty under Rule 7C of the Service Tax Rules, 1994 and Section 77 of the Finance Act, 1994. The adjudicating authority directed the appellants to pay Rs. 12,000/- for each ST-3 Return and also imposed penalty of Rs. 2,000/- under Section 77 of the Finance Act, 1994 against the appellant. Aggrieved by the same, the appellant had filed appeals before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) dropped the penalty under Section 77 of the Finance Act, but confirmed the penalty of Rs. 12,000/- against the appellant under Rule 7C of Service Tax Rules. Hence, the present appeal.

Appellant’s contentions:-None present for the appellant in spite of notice of hearing having been sent to them well in advance.

Respondent’s contentions:- The ld. A.R. appearing for the Department, has reiterated the findings of the ld. Commissioner (Appeals) and submitted that the ld. Commissioner (Appeals) has already dropped the penalty under Section 77 of the Finance Act, 1994. Therefore, there is no reason to waive the late fees directed to be paid under Rule 7C of the Service Tax Rules, 1994.

Reasoning of judgment:- Heard the ld. AR for the Department and perused the records. Undisputedly, the appellants were registered with the Service Tax Department for providing taxable services. It is also not in dispute that during the period April 2005 to March 2008, they have not provided any service and also they have not filed any returns with the Department. They have filed six ST-3 Returns belatedly on 18-11-2008. It was found that in view of the Board’s Circular No. 97/8/2007-S.T., dated 23-8-2007, in the event, no service is rendered by the service provider, there is no requirement to file ST-3 Returns. The ld. AR could not produce anything contrary to the said Circular. Besides, it was found that as per Rule 7C of the Service Tax Rules, in the event, ‘nil’ returns are filed, the assessing officer had the discretion to waive the late fees for filing the ST-3 Returns. In Tribunal’s view, it is a fit case to invoke the proviso to Rule 7C and waive the late fees relating to the nil returns filed by the appellant during the period April, 2005 to March, 2008. A similar view has been held by this Tribunal in the case of M/s. Amrapali Barter Pvt. Ltd. & M/s. Vijay Laxmi Promoters Pvt. Ltd. v. Commr. of Service Tax, Kolkata bearing its Order No. A-879-880/Kol/2012 dated 14-12-2012. In these circumstances, the order of the ld. Commissioner (Appeals) is set aside and the appeal filed by the appellant is hereby allowed. Appeal is allowed.

Decision:- The appeal allowed.

Comment:- The essence of the case is that as per C.B.E. & C. Circular No. 97/8/2007-S.T., dated 23-8-2007, if assessee has not provided any service, there is no need to file service tax returns. In view of the said circular, it was concluded that the delay in filing “Nil” returns would not attract penal provisions under Rule 7C of Service Tax Rules, 1994.

Prepared by: Monika Tak

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PJ/CASE LAW/2014-15/2301

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