TaxTMI 
TaxTMI 
2014 (2) TMI 485
X X X X Extracts X X X X
X X X X Extracts X X X X
....ediately because TAFE had not paid service tax amount to the appellant. Later the appellant remitted this service tax amount of Rs.5,20,274/- and interest of Rs.1,59,598/- in May 2009. Subsequently, show cause notice dt. 23.4.2010 for the period 2004-05 to 2008-09 covering both the periods i.e. the period for which they were not registered and had not paid tax as also for the period for which they were registered and were paying service tax. 2. After adjudication, there is a demand of Rs.5,71,328/- confirmed against the appellant along with interest under section 75 and penalty of Rs.5000/- under section 77 and penalty of Rs.5,71,328/- under section 78. The order also appropriates an amount of Rs.5,20,274/- and interest of Rs.1,59,598/- paid by the appellant. Therefore, a dispute in this appeal is only to the extent of tax amount of Rs.51,054/- and corresponding interest and penalty. Aggrieved by the order of Commissioner (Appeal) confirming the order of adjudicating authority, appellant has filed this appeal before Tribunal. 3. Ld. advocate submits that this difference is on account of three factors. Firstly the demand is based in income tax return which is prepared on the b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss receipts in the Statement of total income for the accounting year 2008-09 is as per Form 16A, which is Rs.14,85,516/- The gross receipt has been taken from the profit and loss account filed to the Income tax department. The assessee did not produce any Form-16A (TDS certificate) for verification. However, they provided a copy of Form 26AS (Annual Tax Statement under Section 203AA of the Income Tax Act, 1961) taken from TRACES 9TDS Reconciliation Analysis and Correction Enabling System) of the Income tax portal. As per Form 26AS the gross amount paid has been shown as Rs.14,96,190/- and so it does not tally with the Profit and Loss account figure of Rs.14,85,516/-. Point 3 : The above amount of Rs.14,85,516/- is inclusive of Rs.15,047.50 and Rs.9500/- which pertains to the year 2007-08 and the other amounts in Form 16A is inclusive of Service Tax. As per the TRACES entry both the aforesaid amounts, i.e., Rs.15047.50 and 9500/- have been paid to the assessee in the Accounting year 2008-09 only and it has been shown in the Profit and Loss account on receipt basis. Point-4 : In the Show Cause Notice, the demand has been wrongly made by including the Service Tax amount, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be Rs.13,31,604/-. As Form 26AS has been taken from the income tax portal, it should be taken as the authenticated figure and so the taxable value should be Rs.13,31,604/- and the service tax payable thereon works out Rs.1,64,586/- (ST Rs.159792/-, EC-Rs.3196/- and SHEC Rs.1598/-). Against this liability the assessee has paid Rs.1,61,397/- only. Hence, the differential service tax yet to be paid by the assessee works out to Rs.3,189/- (ST-Rs.3,096/-, EC-Rs.62/- and SHEC-Rs.31/-) The relevant P&L account, copy of Form 26AS are enclosed for ready reference. 9. The sum total of the verification report dated 22-01-2014 as I see it is that the differential tax amount due as per calculation of Revenue is Rs. 3189/- only. Further this is based on the presumption that appellant has been preparing his profit and loss account on receipt basis only and not on accrual basis. However this statement is in conflict with report given against Point No. 5. It is also not supported by TDS TRACES sheet sent along with the report because the heading for column 7 is Total amount Paid/ Credited. It is not Total amount Paid as Revenue is reading. 10. The Ld. AR further makes the following ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was doing Maintenance and Repair Service. He submits that he had paid service tax amount along with interest before issue of show cause notice and department ought not to have issued SCN under section 73(3). Show cause notice has been issued because of some confusion based on income tax return was generated. The factual position is that the Appellant paid appropriate service tax with interest on moneys received for the year period prior to 2008-09 with delay and was paying service tax liability for 2008-09 correctly on receipt basis. 14. I have considered submissions on both sides. I find that the dispute in the matter of service tax liability is only to the extent of Rs.51,054/- after adjudication and first appeal. After reconciliation by Revenue vide report dated 22-01-2014 the disputed tax amount is Rs.3189/- only. The reason given by appellant is that this liability is in respect of amounts received by the appellant in the subsequent financial year on which they paid tax in the subsequent financial year. Admittedly, there is some default on the part of the appellant in submitting reconciliation statement before the lower authorities though the basic reason for difference bet....