Second show cause notice set aside as time-barred when based on same facts as first notice without fresh suppression

The CESTAT Allahabad held that the second SCN dated 08.10.2021 was unsustainable on limitation grounds. Both SCNs were issued based on third-party data from the Income Tax Department regarding differential values between IT returns and ST-3 returns for advertisement space sales. The tribunal found that since the appellant regularly filed ST-3 returns and all relevant facts were known to authorities from the first SCN, there was no suppression of facts warranting invocation of extended limitation period. The revenue's case relied entirely on third-party data, which could not justify the longer limitation period. The tribunal concluded that similar facts from the first SCN could not constitute fresh suppression, making the second demand time-barred and liable to be set aside. Appeal was allowed.

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ISSUES:

Whether a subsequent Show Cause Notice (SCN) issued for a later period is sustainable when the facts were already known to the Department at the time of the first SCN.Whether invocation of extended period of limitation is permissible on the ground of suppression or concealment of facts when the Department had knowledge of the relevant facts at the time of the first SCN.Whether demands based solely on third party data (Income Tax Return and Form 26AS) can sustain service tax liability when returns have been regularly filed by the appellant.

RULINGS / HOLDINGS:

The subsequent SCN issued for the period 2016-17 is not sustainable as "all the relevant facts were in the knowledge of the Adjudicating Authority" at the time of the first SCN for 2015-16, and therefore, the Department cannot invoke the extended period of limitation "in the garb of suppression of concealment of facts."The appellant, having filed ST-3 Returns regularly, "cannot be held liable for misleading the authorities or suppressing the information from the Department."The demand based solely on third party data provided by the Income Tax Department, invoking the longer period of limitation, is "not sustainable on limitation" and liable to be set aside.

RATIONALE:

The Court applied settled legal principles relating to limitation and suppression of facts, relying on precedent that once a Show Cause Notice has been issued on a particular proposition, a second SCN invoking extended limitation period cannot be issued on the same facts.Decisions cited include the principle that the Department cannot "plead suppression of fact" to justify extended limitation when the facts were already known, as held in prior Supreme Court and High Court rulings and consistent Tribunal decisions.The adjudication was based on reconciliation of gross receipts as per third party Income Tax data vis-à-vis ST-3 Returns, but the Court emphasized that knowledge of these facts at the time of the first SCN precludes extended limitation invocation.No dissenting or concurring opinions were noted; the judgment follows established doctrine on limitation and concealment.

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