2025 (10) TMI 722 - AT - Service Tax

Appellant found to have rendered taxable services; missing invoices and non-taxable receipts lead to remand for recomputation

CESTAT upheld that the appellant rendered taxable services, in some instances collected service tax but failed to deposit it or disclose it in returns, ... Short payment of service tax on various services - various works orders which the appellant had received from SAIL Bhilai, L & T, SK Samantha and others the appellant had received service charges along with service tax from the service recipients but it had not deposited the service tax so collected with the department - demand confirmed based on the ledgers/ bills raised by the appellant itself, the profit and loss account and other records of the appellant - reason to believe that the appellant was under any bonafide belief that no tax was to be paid or no return was to be filed or not - invocation of extended period of limitation - All the annexures to the SCN were not enclosed with it. HELD THAT:- It is a matter of record that the appellant had rendered taxable services to its clients and in some cases even collected service tax on such services but it did not deposit it with the Government. The appellant was registered with the service tax department and, therefore, there is no reason to believe that the appellant was under any bonafide belief that no tax was to be paid or no return was to be filed. The fact that the appellant even collected service tax in some cases from clients but had not deposited it in the Government or recorded in the ST-3 returns also shows the intent of the appellant. In some cases, even though the appellant had paid some amount of service tax as was evident in the ACES system, these amounts were not reflected in its ST-3 returns. In short, the appellant was registered with the service tax department, was aware that service tax needs to be paid and even collected service tax in some cases but did not pay service tax to the Government and in some cases paid service tax but did not reflect it in the ST-3 returns. The show cause notice must be seen in the light of these facts. It is evident that the appellant has NOT come clean about its taxable services rendered. Invocation of extended period of limitation - HELD THAT:- The submission of the learned counsel that the ledgers and bills of the appellant are a public document is devoid of merit. These would have been available with the appellant or with the service recipient and they are not public records. The appellant should have reflected them truly and faithfully in its ST-3 returns and it did not. It also must be noted that even after collecting the service tax from its clients in some cases, the appellant did not deposit the same. Under such circumstances, the proper course of action was for the department to determine the service tax liability as per best judgment assessment as per section 72 on the records and accounts available - there is favour of the department that the appellant did not discharge service tax correctly and did not reflect all its bills in its ST-3 returns. This was clearly suppression of facts with an intent to evade service tax. There are no infirmity in the impugned order invoking the extended period of limitation. All the annexures to the SCN were not enclosed with it - HELD THAT:- Out of 1141 bills listed in the annexure to the SCN considered to calculate the demand, only copies of 508 bills were provided to the appellant, and the rest were not provided to the appellant. According to the appellant this would amount to violation of the principles of natural justice. There are no assertion by the learned authorized representative for the department that the remaining Bills of Entry were also supplied to the appellant supported by any document. To this extent and for this purpose the matter needs to be remanded. Total income from the profit and loss accounts were considered for calculating the demand of service tax of which the following receipts were not amenable to service tax - HELD THAT:- An amount of Rs. 10,00,000/- received from Shri Vishnu Pathak and referred to at Sr. No. 206 at page no. 35 of annexure to the SCN was considered by the department as hire charges for the JCB but, in fact, it was only a loan given by Sh. Pathak which was to be repaid by the appellant. A letter to the effect from Sh. Pathak is placed at the Page 161 of the appeal. It is found favour of the appellant on this count. The value of taxable services needs to be recomputed after excluding any amounts which are not taxable but which were received during the period. This requires verification by the Commissioner. Lastly, the appellant submitted that there is no classification of the services on which or under which the tax was demanded by the department - HELD THAT:- It is found that for the period post 2012 all service tax services were taxable and for the period before 2012 only taxable services were exigible to be taxed. The appellant did not disclose the details of the taxable services rendered. Only course for the department was to make a best judgment assessment based on the available records. If the appellant claims that certain amounts were not exigible to service tax because they were not towards provision of taxable services, it is for it show the details of such amounts and evidence. The appeal is allowed by way of remand to the adjudicating authority with the following directions: (a) The remaining bills or invoices recovered from the appellant which have been referred to or their copies shall be provided to the appellant; (b) The amounts claimed by the appellant as being received for other than rendering taxable services may be verified after giving an opportunity to the appellant to submit evidence. (c) The demand of service tax may be re-computed, accordingly, and any amounts already deposited may be appropriated towards it; (d) Interest and penalty may also be re-calculated accordingly. The appeal is allowed by way of remand to the Commissioner. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether the extended period of limitation under the statute is invokable where ledgers/bills of the assessee exist but assessee has not disclosed amounts in ST-3 returns and has collected service tax without depositing it. 2. Whether non-supply of copies of annexed bills/invoices relied upon in the show cause notice violates principles of natural justice and requires remand. 3. Whether amounts recorded in profit & loss account or ledgers that represent non-taxable receipts (loan, refund of security deposit, transport charges, sale of diesel, amounts subject to reverse charge) can be included in computation of taxable value without verification. 4. Whether Form 26AS alone can be the basis for demanding service tax. 5. Whether amounts paid by the assessee after issuance of the show cause notice have been correctly appropriated against the confirmed demand and how recomputation/appropriation should proceed. 6. Whether classification of services is required for confirming demand where assessee has not disclosed details and the department makes best judgment assessment on available records. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Extended period of limitation and concealment/suppression Legal framework: Section 73(1) (demand) read with provisions permitting extended period where there is 'suppression of facts' with intent to evade tax; best judgment assessment under section 72 where records are available but returns are incorrect. Precedent Treatment: No specific judicial precedents were cited or followed in the decision. Interpretation and reasoning: The Court/Tribunal found that the appellant was a registered taxable person who in many instances collected service tax from recipients but did not deposit it and failed to reflect bills and payments correctly in ST-3 returns. Ledgers/bills were in the appellant's possession and not public records; the omission to disclose amounts in returns constituted suppression of facts with intent to evade tax. Under these circumstances the department properly invoked extended limitation and applied best judgment assessment on the available records and accounts. Ratio vs. Obiter: Ratio - Where a registered person has collected service tax and omitted to disclose same in returns and books show undisclosed taxable receipts, such concealment justifies invocation of extended limitation and best judgment assessment. Conclusion: Extended period of limitation was rightly invoked; the impugned demand on this ground is sustainable. Issue 2 - Non-supply of annexures and principles of natural justice Legal framework: Principles of natural justice require that material relied upon in a show cause notice be made available to the person charged so as to enable effective defence; statutory adjudication must provide opportunity to meet evidence. Precedent Treatment: No precedents cited; treated on first principles of natural justice. Interpretation and reasoning: The show cause notice annexed 1,141 bills but copies of only 508 were supplied to the appellant. The Revenue did not assert or document supply of the remaining bills. The Tribunal found that absence of production of those annexures impeded the appellant's ability to defend and therefore remand was necessary for supply and examination of the remaining documents. Ratio vs. Obiter: Ratio - Failure to supply annexures of bills/invoices relied upon in the show cause notice constitutes a procedural defect warranting remand for supply and opportunity to the assessee to rebut. Conclusion: Matter remanded to adjudicating authority for supply of remaining bills/invoices and fresh verification in conformity with natural justice. Issue 3 - Inclusion of non-taxable receipts in computation of taxable value (loan, security deposit refund, transportation, diesel sale, reverse charge amounts) Legal framework: Taxable value must exclude amounts not exigible to service tax; classification of receipts is critical; department may use best judgment assessment but must exclude non-taxable receipts upon verification. Precedent Treatment: No authority relied upon; factual verification directed. Interpretation and reasoning: The Tribunal examined specific contested items: (a) receipt of Rs.10,00,000 labeled as hire charges but supported by a letter indicating it was a loan - found in favour of assessee on this item; (b) refund of security deposit from a principal - found not exigible and allowed exclusion; (c) various amounts claimed as payments for transportation of goods (and not GTA services) - found not exigible and allowed exclusion; (d) amounts relating to sale/price of diesel recovered from clients and amounts discharged under reverse charge were identified as items requiring verification. The Tribunal held that these categories must be verified and excluded from taxable value if established as non-taxable. Ratio vs. Obiter: Ratio - When ledger/PL receipts include amounts that are prima facie non-taxable (loans, refunds of security deposits, non-GTA transport receipts, recoveries of diesel, amounts subject to reverse charge), the adjudicating authority must verify and exclude such amounts before computing service tax liability; failure to verify warrants recomputation on remand. Obiter - specific factual determinations as to each bill are case-specific and directed for verification rather than being finalized by the Tribunal, except where documentary proof compelled a finding (loan and security deposit refund). Conclusion: Re-computation required; specific items (loan receipt and security deposit refund, certain transport receipts) must be excluded; other items to be verified by Commissioner on remand with opportunity for appellant to produce evidence. Issue 4 - Reliance on Form 26AS as basis for demand Legal framework: Form 26AS reflects tax deducted at source and payments credited by third parties and is not by itself a basis for levy of service tax; corroborative records are required. Precedent Treatment: No precedents cited. Interpretation and reasoning: Tribunal accepted that Form 26AS alone cannot be sole basis for demanding service tax. However, the notice and order relied on multiple documents including bills raised by the appellant; therefore, while Form 26AS is not a standalone foundation, its presence as part of a body of material does not invalidate the demand where other corroborative records exist. Ratio vs. Obiter: Ratio - Form 26AS cannot alone support a demand; corroboration by bills/ledgers/other documents is necessary. Obiter - use of Form 26AS as one piece of evidence within a composite case is permissible. Conclusion: No infirmity in relying on Form 26AS as part of composite evidence, but it cannot be sole basis; remand to verify documents remains necessary. Issue 5 - Appropriation of payments made after SCN and recomputation of demand, interest and penalty Legal framework: Payments made by an assessee can be appropriated against confirmed demand; interest and penalties are to be recalculated after netting off credited amounts and after recomputation of taxable value. Precedent Treatment: Not cited; applied statutory scheme of appropriation and recalculation. Interpretation and reasoning: The Tribunal noted that certain amounts paid by the appellant were reflected in ACES but not in ST-3 returns and that some payments made after issue of notice had been appropriated while others had not; it directed verification and appropriation of amounts actually deposited towards the recomputed demand and directed recalculation of interest and penalties accordingly. Ratio vs. Obiter: Ratio - On remand, the adjudicating authority must appropriate any amounts deposited by the assessee against the recalculated demand and recompute interest and penalties accordingly. Obiter - specifics of appropriation are factual determinations left to the authority. Conclusion: Remand directed for appropriation/verification and recomputation of demand, interest and penalty consistent with verified records. Issue 6 - Classification of services and best judgment assessment Legal framework: Taxability depends on classification of services; prior to 01.07.2012 service tax applied to specified taxable services; post-2012 the negative list regime applied; where assessee fails to disclose, department may make best judgment assessment based on available records. Precedent Treatment: None cited. Interpretation and reasoning: Tribunal held that the appellant failed to disclose details of services rendered; for periods post-2012 most services were taxable unless excluded by statute; department was justified in making best judgment assessment on available records. However, where the appellant identifies particular receipts as non-taxable, it must produce evidence to support exclusion and the authority must verify such claims on remand. Ratio vs. Obiter: Ratio - In absence of disclosure by the assessee, best judgment assessment is permissible; nevertheless, classification issues affecting taxability require specific verification and cannot be mechanically assumed against the assessee. Conclusion: Best judgment assessment upheld subject to verification and recomputation on remand once annexures are supplied and non-taxable receipts are excluded if proved. Disposition (operative conclusions) The appeal was allowed to the extent of remanding the matter to the adjudicating authority with directions to supply the remaining annexed bills/invoices, verify and exclude non-taxable receipts (including the loan receipt and security deposit refund already found in favour of the appellant), re-compute the service tax demand, appropriate amounts already deposited, and re-calculate interest and penalties accordingly. The findings upholding invocation of extended limitation and the department's use of best judgment assessment were affirmed subject to the remand-directed recalculations.