2009 (11) TMI 189 - AT - Service Tax

Tribunal grants stay, remands Service Tax case for reassessment

BSNL Versus Commissioner of Service Tax, Thiruvananthapuram

The Tribunal allowed the stay petition against Order-in-Original No. 02/2008-ST(Commr.) and disposed of the appeal immediately after waiving the ... Charge of service tax- The adjudicating authority has confirmed the demand based upon the income shown in the balance sheet. It is his submission that before the lower authorities, they have clearly indicated that the head ‘Income’ includes amount which are not realized but shown as accrued. It is also his submission that the adjudicating authority has not considered the amount shown under free talk time as being charged as expenditure in the balance sheet. Held that- we are convinced appellant’s contention that the amount, which has been received/realized by the appellant should only be considered for the discharge of Service Tax liability, is correct. Set aside the impugned order and remand the matter back to the adjudicating authority to re-consider the issue afresh. Issues:1. Stay petition against Order-in-Original No. 02/2008-ST(Commr.)2. Disposal of appeal based on stay petition3. Discrepancies in the income shown in the balance sheet4. Consideration of accrued income for Service Tax liability5. Remand of the matter back to the adjudicating authorityAnalysis:1. The stay petition was filed against Order-in-Original No. 02/2008-ST(Commr.) confirming Service Tax, interest, and penalties. The Tribunal found that the appeal could be disposed of immediately after allowing the stay petition for waiver of pre-deposit.2. The appellant argued that the adjudicating authority confirmed the demand based on income shown in the balance sheet, including accrued amounts. They contended that the assessment should be based on actual income received, not accrued income. The Tribunal noted discrepancies in the figures considered for income and remanded the matter back to the adjudicating authority for re-examination.3. The Departmental Representative (DR) stated that the appellant had deposited the amount accepted as Service Tax liability. The appellant reiterated that they had already deposited the accepted amount. The Tribunal observed that the adjudicating authority had not considered the correct details and remanded the case for a detailed review.4. Upon careful consideration, the Tribunal found that the balance sheet figures were taken into account for determining income. However, the Tribunal agreed with the appellant that only the amount received by the appellant should be considered for Service Tax liability discharge. As a result, the impugned order was set aside, and the matter was remanded for a fresh consideration by the adjudicating authority.5. The Tribunal emphasized that the adjudicating authority must re-examine the issue, keeping all aspects open and following the principles of natural justice. The stay petition and appeal were disposed of accordingly, with the matter being remanded back for a detailed review.