TaxTMI 
TaxTMI 
2019 (5) TMI 976
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.... Course Road, Indore and providing 'Outward Catering Service'. M/s V.K. Bhandari has also acquired a rental premises of M/s Bhandari Farm & Resort at some other place on rent vide agreement dated 01.11.2009, and providing 'Mandap Keeping. M/s V.K. Bhandari is holding a separate registration for the taxable services provided by him. 3. On 29.01.2010, premises at 30/1 Race Course Road, Indore and the premises of M/s Bhandari Farms & Resorts located at By-pass Road, Indore were searched by the officers of the Department. The officers seized the records of pertaining to various services provided and tax paid to the Department by these firms. Scrutiny of entries in the seized records and also the data retrieved from the LAPTOP+CPU of computers at the business premises revealed that the Appellant appeared to have not discharged service tax against many entries in these records for the services provided by them. Scrutiny of documents further revealed that entries of service provided by the above two registrants are mixed-up in common record and, therefore, was not possible to ascertain as to which entry is related to which firms. During investigation it was also found that Shri Santosh....
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....e are appearing in common records, demand relating to 'Mandap Keeper Service' can be raised to M/s V.K.Bhandari and not on the Appellant i.e M/s Bhandari Cateres. The appellant submitted that since demand pertaining to Mandap Keeper service has also been raised to them, which is not correct and liable to be dropped on this ground alone. It is further submitted by the Appellant that while computing the demand from the bill book resumed, the bills invoices on which service tax stands paid, have also been included erroneously in the demand. The Commissioner agreeing with the arguments of repetition of entries and also entries of services against which bill issued and service tax paid, dropped the demand of Rs. 93,56,908/- and confirmed rest demand of Rs. 57,66,584/- (Mandap Keeper Service Rs. 5,14,324/- + Outdoor Catering service Rs. 52,52,324/-). 5. The Ld. Advocate, appearing for the Appellant, stated that for providing Mandap Keeper service, M/s V.K. Bhandari has acquired premise from third party (Bhandari Farm and Resort) vide agreement dated 01.11.2009, form where they are providing service to their customers for organizing various functions. He also submitted that the departm....
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.... third party vide agreement dated 01.11.2009, whereas the demand is also raised against the entry, dated 7/8 June 2009 i.e. prior to the date of agreement this enquiry was received when they were in process of acquiring the premises, however, when the premises was itself not acquired they could not provided service. This again suggests that the appellant have not provided services against the all entries appearing in the records resumed by the Department. He submitted that whenever they rented their premises to their customers, they had raised appropriate bills and paid proper service tax. Therefore, demand raised merely on the basis entries of customer's enquiry without any corroborative evidence from respective customer about renting of premises is not legal and proper. The Department has presumed that Mandap Keeper Service was provided against the all the entries in the record. Thus demand is raised on assumptions and presumption is not sustainable. 6. In regard to the demand for catering services, Ld. Advocate submits that entire demand is raised on the basis of entries of enquiries of customers and the various quotations given to them that is available in the records. Shri ....
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....ns were given to the named persons but presumed as service provided to the customers, without any evidence and confirmation from them. Further document at S.No 2 is in the name of Appellant himself (Shri Santosh Bhandari) which is also treated as service provided. Thus, demand is raised merely on presumption of service provided. 8. During search some diaries were seized and listed as diary no. 1, 4 , 5 & no. 22 (RUD). These diaries were maintained for internal instructions viz Deployment of persons at food counters of catering or for outsourcing of some items from market for providing catering viz. Ice Cream, Pani Puri, Bislery Water Bottles, Pan Counter, Sweet, Sweets etc. Entries in these diaries tabulated in Annexure U-2, X-2, Y-2 & AH-2 to SCN. These entries were presumed as service provided and demand is raised on the basis of these entries. 9. These entries in diary maintained for internal instruction purposes were presumed as catering provided for the number of persons mentioned against each entry and demand is raised. Ld. Counsel submitted that in the entire search/ investigation neither there was any recovery of unaccounted cash nor was there any confirmation from an....
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....he two firms. Further, Shri Santosh Bhandari of M/s Bhandari Cateres is also looking after activity of M/s V.K.Bhandari and therefore demand is raised against Appellant, M/s Bhandari Cateres only. The Appellant have contested the demand in respect of Mandap Keeper Service as they are not providing such service. We find that both the firms are providing Outdoor Catering Service, whereas Mandap keeper Service is not provided by the Appellant and it is exclusively provided by M/s V.K.Bhandari. Therefore, even if entries of the services provided by the two firms are in the common records, it cannot be held that the Appellant M/s Bhandari Caterer is liable of evasion of tax of Mandap Keeper Service, as this service is being provided exclusively by the another registratant i.e M/s V.K.Bhandari. The Firm M/s V.K. Bhandari is owned by Shri V.K.Bhandari father of Shri Santosh Bhandari (Appellant) and even if he had assisted in the activities of his father's firm M/s V.K.Bhandari, which is a separate legal entity and providing Mandap Keeper Service, demand in respect this service cannot be raised on the Appellant, as they are not providing Mandap Keeper Service. We also find that demand of s....