2013 (3) TMI 449 - HC - Service Tax

Court waives pre-deposit in tax appeal, finding discrepancies in revenue figures and limiting taxable amount.

Sercon India Private Limited Through Mohan Goel Versus Commissioner (adjudication) Service tax

The Court allowed the writ petition challenging the Customs, Excise and Service Tax Appellate Tribunal's order, directing the petitioner to make a ... Appeal against the order of CESTAT directing deposit of 1 crore as pre-deposit - inclusion of reimbursement of expenses - valuation - extended period of limitation - held that:- the issue of levying and charging service tax on reimbursable expenditure has been settled by the decision of this Court in Intercontinental Consultants & Technocrats Pvt. Ltd (2012 (12) TMI 150 - DELHI HIGH COURT). Any how even if we assume that the expenditure, which has been reimbursed to thepetitioner could be the subject matter of levy of service tax, that amount would have to be restricted, prima facie, to the sum of ₹ 14.22 crores and not to the figure of ₹ 37.55 crores which has been taken by the revenue. This is so because we do not find any material which would indicate that the petitioner received anything in excess of ₹ 14.22 crores by way of reimbursement from its clients. The figure of ₹ 37.55 crores includes the direct expenditure incurred by the petitioner for which no reimbursement was claimed nor given. The petitioner has been able to make out a very good prima facie case that no additional tax is payable by it in respect of the service rendered by it. - However, since the petitioner has already paid a sum of ₹ 40 lacs, following the directions of the Tribunal, we are not inclined to interfere with that part of the order. - Insofar as the balance ₹ 60 lacs is concerned, stay granted. Issues:1. Challenge against the order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding pre-deposit under Section 35F of the Central Excise Act, 1944.2. Dispute over the service tax demand and penalty imposed on the petitioner.3. Interpretation of reimbursable expenditure for the purpose of service tax liability.4. Invocation of the extended period of limitation due to alleged wilful suppression or concealment.5. Examination of the financial statements and contra entries to determine the actual revenue received by the petitioner.6. Decision on the amount of pre-deposit required for the petitioner's appeal before the Tribunal.Analysis:1. The writ petition challenges the CESTAT order requiring the petitioner to make a pre-deposit under Section 35F of the Central Excise Act, 1944. The Tribunal had directed the petitioner to deposit a total sum of &8377; 1 crore in three installments, of which the first installment of &8377; 40 lacs had already been paid. The petitioner sought a waiver for the balance amount of &8377; 60 lacs.2. The dispute revolves around a service tax demand of approximately &8377; 3.57 crores and a penalty of &8377; 4 crores imposed on the petitioner. The petitioner contended that the actual reimbursable amount received was only &8377; 14.22 crores, which should be the basis for taxation. The petitioner argued that even if the reimbursed expenditure is taxable, it should only amount to &8377; 1.4 crores. The petitioner relied on a previous judgment to support its position.3. The issue of charging service tax on reimbursable expenditure was crucial. The Court found that the petitioner had received only &8377; 14.22 crores as reimbursement, not the alleged &8377; 37.55 crores. The Court held that the revenue's calculation was incorrect, and even if the reimbursed expenditure was taxable, it should be limited to the actual amount received by the petitioner.4. The petitioner contested the invocation of the extended period of limitation, arguing that there was no wilful suppression or concealment. The petitioner asserted that any demand beyond one year should be limited, reducing the total liability significantly.5. Detailed examination of the petitioner's financial statements revealed discrepancies in the revenue figures. The Court analyzed the contra entries and concluded that the actual receipts did not increase by the claimed amount of &8377; 10 crores. The Court clarified the actual revenue received by the petitioner for professional services.6. Ultimately, the Court allowed the writ petition, considering the petitioner's compliance with the pre-deposit requirement. The Court directed that the &8377; 40 lacs already deposited be sufficient for the appeal before the Tribunal, waiving the need for further deposit until the appeal's disposal. The Court emphasized that its findings were prima facie and should not influence the Tribunal's decision on the appeal's merits.