AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 520
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appellant has provided services to M/s. Chandigarh Housing Board (CHB) for construction of residential of complex under composite works contract. On the basis of enquiry conducted, the show cause notices were issued to the appellant to demand service tax under the category of work contract. The show cause notices were adjudicated and the adjudicating authority confirmed the demand as proposed in the show cause notices of Rs. 3,14,42,183/- alongwith interest and also to impose penalty under section 77 and 78 of the Finance Act, 1994. The demand has also been confirmed under section 73 of the Finance Act, 1994. Aggrieved from the said order, the appellant is before us. 3. Learned Counsel appearing for the appellant submits that the impu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the demand has been confirmed by invoking the extended period of limitation alleging suppression of facts on the ground that the appellant has failed to get themselves registered and did not file returns. It is settled law that onus to prove that there is suppression of facts lies upon the Revenue. Mere non registration and consequently non filing of return cannot be called as suppression of facts. The Revenue has failed to discharge its burden. Further, the appellant has acted in a bonafide manner and there was a reason for not paying service tax. The appellant has sought an opinion prior to execution of work from Shri J.k.Mittal, Advocate a leading lawyer of service tax matter who opined that the service tax is not liable on the servic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the demand of Rs. 3.14 crores. (e) He further submits that the respondent has confirmed the demand under section 73 of the Act or under section 73A of the Act. The demand raised in the show cause notice is more than double of the tax confirmed. The Revenue is considering the tax demanded under section 73 equal to the tax payable under section 73A of the Act. It shows that department has never sure that how much amount has been actually collected and retained by the appellant. Apart from this fact, the demand cannot be raised under section 73A of the Act merely on the ground that contract was inclusive of service tax . He submits that there are number of cases where the tax was inclusive of all taxes but service tax was not considered at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....appellant has executed the work. Admittedly, in this case, the work has been executed at Chandigarh, therefore, the cause of action arose at Chandigarh and the Commissioner of Central Excise, Chandigarh-II has no jurisdiction for the work executed at Chandigarh. In that circumstance, the adjudicating authority has no jurisdiction to adjudicate the impugned show cause notice. Therefore, the impugned order is not sustainable in the eyes of law. 7. Admittedly the units constructed by the appellant has been lease out by CHB to slum dwellers on payment of monthly lease and houses were not sold by CHB but these were allotted on lease/licence basis. In that circumstance, as the said housing units have not been sold by CHB, therefore, relying on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ivity of construction of flats. 8. We further find that as the issue is debatable, therefore, extended period of limitation is not invokable in the instant case. 9. We further find that the adjudicating authority has confirmed the demand under section 73A of the Act. We have seen that the show cause notice proposed to demand under section 73 and section 73A of the Act. Admittedly, the respondent themselves are confused under which provisions, they want to demand service tax from the appellant as on the one hand, the demand has been raised under section 73 and on the other hand, the demand has also raised under section 73A of the Act. It shows that the respondent themselves are confused that how much amount has actually been collected by t....