2025 (9) TMI 126 - AT - Service Tax

Rectification allowed for apparent error after wrong VCES declaration led to Rs 2.28 crore service-tax demand

CESTAT, New Delhi (AT) allowed the rectification application, finding an error apparent on the record where a service-tax demand of Rs. 2,28,08,414 for ... Seeking Rectification of Mistake - error apparent on the face of records or not - amount received on account of construction of the flats (Manglam Build Developers Limited) - advances received from Customers - flat booking amount received with respect to Aradhna Residency - HELD THAT:- It is observed that the demand was proposed pursuant to the wrong declaration by the assessee-respondent herein under VCES Scheme. While issuing the impugned show cause notice dated 19.12.2014, service tax of the total amount of Rs. 2,28,08,414/- was proposed to be recovered for the period from 01.04.2011 to 31.12.2012. It has been the settled position of law that whenever binding decisions and the submissions are pointed out specifically, but the same were not been relied upon nor considered by the adjudicating authority it will tantamount to be the error apparent on face of records as was held by the Hon’ble Supreme Court of Kerala in the case of Koluthara Exports Limited vs. Union of India [2021 (11) TMI 302 - KERALA HIGH COURT]. The Hon’ble Supreme Court also had earlier held the same in the case titled as Honda Syal Power Product Limited vs. Commissioner of Income Tax, Delhi [2007 (11) TMI 8 - SUPREME COURT]. The required changes rae made in the impugned final order, the present application is hereby allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether omission of findings on specific grounds in a final adjudication order amounts to an error apparent on the face of the record warranting rectification. 2. Whether the adjudicating authority should be directed to incorporate findings regarding (a) amounts received on account of construction of flats (works contract treatment/abatement), (b) advances received from customers, and (c) flat booking amounts, where those grounds were part of the show-cause notice but not addressed in the final order. 3. Whether the appellant/respondent is entitled to abatement of value for amounts received for construction of flats (treated as works contract service) when the original authority had recognised entitlement but denied abatement without reasons. 4. Whether amounts received as advances from customers and flat booking amounts are taxable in the relevant period where earlier proceedings indicate whole amounts were received and accounted for in an earlier period. ISSUE-WISE DETAILED ANALYSIS Issue 1: Omission of findings - error apparent on the face of the record and rectification Legal framework: Rectification is permissible where an error is apparent on the face of the record, including failure to consider or decide issues specifically raised in pleadings or show-cause notices. Precedent Treatment: The Tribunal applied the principle that when binding decisions and submissions are pointed out and not considered by an adjudicating authority, that omission constitutes an error apparent on the record; prior higher court decisions establishing this principle were relied upon by the Tribunal. Interpretation and reasoning: The Tribunal examined the impugned final order and the original show-cause notice and found that three counts/gounds raised in the show-cause notice were not dealt with in the final order. Given that those grounds were part of the demand calculation and were specifically brought to the adjudicator's attention, their omission was not merely a debatable view but an omission amounting to an obvious error on the face of the record. Ratio vs. Obiter: Ratio - omission to decide specific grounds raised in show-cause notice, when pointed out and not considered, is an error apparent on record entitling to rectification. Conclusion: The application for rectification was allowed and the Tribunal directed incorporation of findings on the omitted counts as additional paragraphs in the final order. Issue 2: Incorporation of findings in the final order for omitted counts Legal framework: Where rectification is warranted, the adjudicating order may be amended to include necessary findings so as to render the order complete and coherent, consistent with principles of natural justice and reasoned decision making. Precedent Treatment: The Tribunal relied on the established approach that missing adjudicative reasons or failure to consider specific submissions/facts requires corrective action; prior authorities endorsing correction of such omissions were applied. Interpretation and reasoning: The Tribunal, after hearing submissions and perusing records, formulated and inserted two additional paragraphs (9A and 9B) covering the omitted counts: (i) abatement entitlement for construction of flats (Manglam Build Developers Limited) and (ii) taxability of advances and booking amounts (Aradhna Residency). Those insertions followed the Tribunal's analysis of the record and the reasons already appearing in the original adjudication (including the original authority's acknowledgement of entitlement but unexplained denial). Ratio vs. Obiter: Ratio - where findings are omitted, the Tribunal can and should incorporate appropriate findings if omission is an error apparent on record; the specific inserted findings are operative parts of the order. Conclusion: Paras 9A and 9B were incorporated into the final order; consequential paras 10 and 11 were re-cast to reflect which demands were confirmed and which were set aside. Issue 3: Entitlement to abatement for construction of flats treated as works contract service Legal framework: Abatement under the relevant notification applies where the gross receipt includes value of raw materials supplied and labour involved in execution of works contract; entitlement depends on characterisation of activity as works contract service and proper appreciation of facts on record. Precedent Treatment: The Tribunal noted that the original adjudicating authority had appreciated the entitlement in a paragraph of its order but nevertheless denied the benefit without stating reasons; this inconsistency was impermissible and justifies setting aside the contrary finding. Interpretation and reasoning: The Tribunal reviewed the record showing the appellant had submitted that the activity was a works contract with gross receipts including raw materials and labour, and that the original authority had earlier appreciated this entitlement. In absence of stated reasons for denial, the Tribunal set aside the denial and held entitlement to abatement vis-à-vis amounts received on account of construction of flats. Ratio vs. Obiter: Ratio - where an adjudicator acknowledges entitlement to a relief in reasoning but denies the relief without reasons, the denial is unsustainable; entitlement to abatement was upheld as a substantive finding. Conclusion: Demand relating to amounts received on account of construction of flats was set aside; abatement was allowed and incorporated in amended order. Issue 4: Taxability of advances and flat booking amounts where prior accounting indicates amounts were received in earlier period Legal framework: Taxability depends on whether the receipts in the relevant period were new receipts or had already been received and accounted for in an earlier period; once whole amount of an agreement was received and accounted for in an earlier period, the assessee cannot claim that part of the same amount was received again in a subsequent period. Precedent Treatment: The Tribunal relied on the original adjudicating authority's finding in earlier proceedings that the amounts under most agreements had been received up to an earlier period; the Tribunal found no record to refute that observation. Interpretation and reasoning: The original adjudicator observed that copies of agreements showed receipt in prior period for 17 of 18 agreements and rejected the later claim that amounts totaling Rs.1,49,63,653 were received as new receipts in 2011-12. The Tribunal found no documents to displace that observation and therefore held the amounts to be taxable in the later period (i.e., liable to service tax as claimed in the show-cause notice) only where properly attributable to the relevant period; in the present review, the Tribunal sustained liability for advances and booking amounts as presented in the impugned proceedings. Ratio vs. Obiter: Ratio - earlier accounting and documentary record that whole amounts were received in an earlier period precludes recharacterisation as fresh receipts in a later period; finding that the assessee is liable on the advances and booking amounts was maintained. Conclusion: The Tribunal confirmed the demand in respect of advances received from customers and booking amounts for the residency; no document was found to falsify the earlier adjudicator's observation, and liability was accordingly upheld. Consequential Disposition Legal framework & Interpretation: After incorporation of the additional findings, the Tribunal re-summarised the confirmed and set-aside demands: confirmed - construction of education institute complexes, legal and professional consultancy, and advances/booking amounts; set-aside - construction of 18 individual houses, remuneration paid to directors, and amounts received for construction of flats (subject to abatement finding). Ratio vs. Obiter: Ratio - rectification altering the scope of confirmed demands and setting aside others is permissible where error apparent on record is established and corrected findings are warranted. Conclusion: The rectification application was allowed; the final order was amended to include the additional findings and to reflect partial confirmation and partial setting aside of demands, with the appeal being partly allowed accordingly.