2025 (10) TMI 613 - AT - Service Tax

Extended limitation inapplicable where principal contractor discharged tax liability, no mala fide intent; service tax demand set aside

M/s Friendship Water Proofing Versus Commissioner, CGST & Central Excise, Lucknow

CESTAT held the extended limitation period inapplicable because the tax liability was discharged by the principal contractor, rendering the matter revenue ... Availability of larger period of limitation to the Department - tax liability stands discharged by the Principal contractor - payment made by the Principal Contractor on behalf the sub-contractor - revenue neutrality - HELD THAT:- It is noted that tax liability stands discharged by the Principal contractor and the whole exercise in the case is revenue neutral. Under these circumstances, the Appellant cannot be held liable for evading service tax with any malafide intention to evade payment of Tax. It is a settled law that if on any issue there is a legal dispute which involved interpretation of law, any malafide intention or suppression of fact with intent to evade payment of service tax cannot be attributed to the assessee. On this ground also, the extended period of limitation was not invokable. Similarly, when the adjudicating authorities are having diverse views, the extended period of limitation would not be invokable. The issue is already settled by the Hon’ble Supreme Court in the case of Commissioner of Central Excise, VAPI Vs. Kolety Gum Industries [2016 (5) TMI 275 - SUPREME COURT]. Thus, the extended period of limitation is not invokable in the present case. On facts and under the circumstances of the case the impugned order confirming the demand of Service Tax cannot be sustained and is accordingly set aside - Order-In-Original passed by the Assistant Commissioner is upheld - appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the liability to pay service tax can be shifted from the service provider (sub-contractor) to the service recipient (principal contractor) in absence of an agreement to that effect. 2. Whether payment of service tax by the principal contractor on a consolidated basis, supported by certificates and challans, operates to discharge the service tax liability of a sub-contractor for the same services and thus precludes fresh demand to avoid double taxation. 3. Whether the Department can invoke the extended period of limitation for recovery of service tax where (a) there were conflicting judicial/tribunal views at the relevant time and (b) the assessee acted under a bona fide belief, supported by documents, that tax was discharged by the principal contractor. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Shifting of Service Tax Liability by Contract Legal framework: Service tax is an indirect tax; statutory liability as per the Finance Act rests on the person designated by law as the assessee. However, parties may, by contract, allocate economic burden between themselves. Precedent treatment: The Tribunal/High Court/Supreme Court jurisprudence recognises that an assessee can, by contract, pass on the economic burden of an indirect tax to another party; the Court treated earlier authority to this effect as applicable. Interpretation and reasoning: The Court notes that shifting of tax burden from the statutory assessee to another party is permissible only if there is evidence of an agreement to that effect. The adjudicating authority did not record any documentary finding or contractual evidence establishing that the sub-contractor had agreed to shift liability to the principal contractor. Ratio vs. Obiter: Ratio - shifting liability requires an agreement or contractual arrangement establishing that intent. Obiter - general observation that service tax being an indirect tax can, in theory, be passed on. Conclusion: In absence of documentary proof of an agreement to shift tax liability, mere assertion of shifting is insufficient to negate statutory liability. Issue 2 - Effect of Principal Contractor's Consolidated Payment and Certificates on Sub-contractor's Liability Legal framework: If tax on a transaction has already been discharged, double taxation is to be avoided; evidentiary proof of payment by a party responsible for consolidated payment can affect liability of other parties who performed parts of the same composite service. Precedent treatment: The adjudicating authority relied on earlier tribunal decisions holding that where the main contractor/consultant has paid service tax and has issued certificates, subcontractors/sub-consultants were not liable to pay again; such precedents were cited and followed by the Original Authority. Interpretation and reasoning: The Original Authority examined work orders, multiple certificates issued by units of the principal contractor, and challans showing consolidated deposits of service tax totaling amounts materially higher than the demand. The Original Authority found that the principal contractor had deposited consolidated service tax on construction including water-proofing work and issued certificates to that effect. The Court observed that re-charging the same value would lead to double taxation and there was no legislative intention under the Finance Act to tax the same value twice. Ratio vs. Obiter: Ratio - documentary evidence that the principal contractor discharged consolidated service tax and issued certificates can operate to show that the sub-contractor's services have already suffered tax and thereby negate fresh demand. Obiter - reference to various tribunal decisions supporting non-liability of subcontractor when main contractor has paid. Conclusion: Where authoritative documentary evidence (challans, certificates, work orders) establishes that the principal contractor paid service tax on the same consolidated works, the sub-contractor is not liable to be charged again; the Original Authority correctly dropped proceedings on that factual matrix. Issue 3 - Invokability of Extended Period of Limitation in Presence of Conflicting Judicial Views and Bona Fide Belief Legal framework: Extended limitation for tax recovery is available where there is suppression of facts or intent to evade; where legitimate legal doubt exists and judicial/tribunal views are conflicting, extended limitation may be inapplicable. Precedent treatment: The Court relied on settled Supreme Court authority (as cited in the judgment) and subsequent tribunal decisions holding that when divergent views existed at the relevant time, an assessee may legitimately entertain a bona fide belief that tax is not payable and extended limitation cannot be invoked by the Department. Interpretation and reasoning: The Court found that at the relevant time there were conflicting decisions of the Tribunal on whether a sub-contractor must pay service tax where the principal contractor had discharged the tax. The appellant had disclosed relevant entries in returns and produced certificates and challans; there was no finding of suppression or mala fide intent. Accordingly, invocation of extended limitation was not justified. Ratio vs. Obiter: Ratio - extended period of limitation is not invokable where divergent judicial/tribunal views create bona fide doubt and no suppression or mala fide intent is shown. Obiter - references to multiple judicial decisions illustrating the principle. Conclusion: Extended period of limitation could not be invoked on facts where conflicting authority existed and the assessee acted under bona fide belief supported by documentation; the impugned demand premised on extended limitation cannot be sustained. Cross-References and Interaction of Issues Issues 1 and 2 are interrelated: absence of a contractual agreement to shift liability (Issue 1) does not preclude non-liability of the sub-contractor if independent documentary proof establishes that the principal contractor paid consolidated service tax covering the sub-contractor's services (Issue 2). Issue 3 overlays both: even if legal interpretations were unsettled, extension of limitation cannot be invoked where bona fide doubt existed and no suppression is shown. Final Disposition (Legal Conclusion) The extended period of limitation is not invokable on the facts; the original order dropping proceedings stands upheld. The impugned order confirming demand is set aside because the Revenue failed to establish invokability of extended limitation and the Appellant produced documentary evidence demonstrating that the principal contractor had discharged the consolidated service tax, rendering fresh demand impermissible as double taxation.