2023 (11) TMI 1080 - AT - Service Tax

Service tax demand set aside on limitation grounds after Commissioner fails to prove deliberate suppression

M/s. Dinesh Chandra R Agarwal Infracon Pvt Ltd Versus Commissioner of CGST & C. Ex – Gandhinagar

The CESTAT Ahmedabad allowed the appeal, setting aside the service tax demand on limitation grounds. The appellant provided services to Chief Engineer, ... Exemption from Service Tax - services provided to the Chief Engineer, Military Engineer Services - applicability of N/N. 25/2012-ST dated 20.06.2012 - suppression of facts on the part of the appellant or not - extended period of limitation - HELD THAT:- It was possible for the Appellant to hold that on the activity carried out by them service tax was not payable on such activity since the services were provided to central government for discharge of sovereign function. Whether the demand of service tax is required to be set aside on the ground of limitation? - HELD THAT:- It is undisputed fact in the present matter that the entire issue has arisen on the basis of comparison of the income disclosed by the appellant in their financial statements and disclosed the value of taxable services in their periodical returns. It is also undisputed fact that the entire income was recorded as a income in the financial statements of the appellant. Therefore it is not a case where the income was also not recorded in financial statement and the revenue authorities found out the rendition of services on the part of the appellant basis on some other sources. It can be seen from the above that Ld. Commissioner has only observed that since the appellant did not disclose the revenue for these project in their periodical return and therefore the Ld. Commissioner has justified the invocation of extended period of limitation to confirm the demand of service tax in the present matter. Learned Commissioner has not given any ground to show that there was a deliberate attempt on the part of the appellant to suppress or to miss declare the value of service - Ld. Commissioner has not even examined the various ingredients for invocation of extended period of limitation as provided in first proviso to section 73(1) of the Finance Act 1994 - It is obsereved that on the basis of the above analysis of Section 73(1) of the Finance Act, 1994 and various decision of these tribunal and settled principle of law, the demand of service tax in the present matter beyond the period of limitation is not sustainable. The demand in the present matter is for the period 2016-17 and April 2017 to June 2017 and the show cause notice is issued on 27.08.2020. Therefore the entire demand is liable to be set aside on the ground of limitation - the impugned order is set aside - Appeal allowed. Issues Involved:1. Eligibility for Service Tax Exemption under Notification No. 25/2012-ST.2. Revenue Neutrality.3. Limitation and Invocation of Extended Period of Limitation.Summary of Judgment:1. Eligibility for Service Tax Exemption under Notification No. 25/2012-ST:The appellant argued that the services provided to the Chief Engineer, Military Engineer Services, were exempted from service tax under Notification No. 25/2012-ST dated 20.06.2012. They supported their claim with various tribunal and court decisions where services provided to the government were exempted. The Tribunal found that the appellant's services were indeed provided to the government for discharging a sovereign function, thus supporting the appellant's view that service tax was not payable on such activities.2. Revenue Neutrality:The appellant contended that the demand for service tax was not sustainable on the grounds of revenue neutrality. They argued that since the services were provided to the government, any service tax paid would have been available as a credit to the government, making the net revenue impact neutral. The Tribunal did not provide a separate detailed analysis on this point but implied agreement with the appellant's broader arguments against the service tax demand.3. Limitation and Invocation of Extended Period of Limitation:The Tribunal extensively discussed whether the extended period of limitation could be invoked. It was noted that the entire issue arose from the comparison of income disclosed in the appellant's financial statements with the value of taxable services declared in their service tax returns. The Tribunal cited various judicial precedents to conclude that mere non-disclosure in returns, without intent to evade tax, does not justify invoking the extended period of limitation. The Tribunal found no evidence of deliberate suppression or misstatement by the appellant. Consequently, it was held that the demand for service tax was time-barred as the show cause notice was issued beyond the normal period of limitation.Conclusion:The Tribunal set aside the impugned order, allowing the appellant's appeal with consequential relief. The demand for service tax was found unsustainable on the grounds of exemption eligibility and limitation.