Order date – 28 November 2022

 Facts –

• The Appellant, Prabhadevi Himgiri Co-operative Housing Society Ltd, fails to file Service Tax Returns in the prescribed form ST-3 as required under Section 70 ibid r/w. Rule 7 electronically through ACES within the period prescribed therein.
• A show cause notice dated 19.02.2013 was issued for imposing penalty under Section 70 ibid r/w Rule 7C ibid for delayed filing of ST-3 Returns for the period from April, 2009 to March, 2011 and October, 2011 to March, 2012.

Issue –

• Whether the penalty under Section 70 can be imposed on appellant?

Order –

• The Tribunal finds that the Section 70 ibid provides that only the persons who are liable to pay service tax, have to file the return on time else they are liable to pay penalty.
• The appellants are not liable to pay service tax at all and once it has been held that they are not liable to pay service tax then section 70 ibid itself has no application. Although they have filed return belatedly for whatever reason but they were not obliged to do so. This act of theirs cannot put them in any adverse situation as they are not liable to pay any service tax.
• The Tribunal relied on the decision of Hon'ble Supreme Court, Hon'ble High Court and by this Tribunal as well and some of them are Matunga Gymkhana vs. CST, Mumbai; 2015 (38) STR 407 (Tri-Mum) and others held that in view of the principle of mutuality of interest as discussed hereinbefore and looking into the fact that the members of the Appellant are providing services to themselves, no Service Tax is leviable on the same.
• Hence observed that the appellant are not liable to pay any service tax therefore section 70 ibid has no application on the facts of this case and hence a fortiori there is no justification for imposing any penalty.
• Appeal is allowed.