TaxTMI 
TaxTMI 
2023 (7) TMI 56
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....Gujarat Government, providing service for construction/repair of Roads, Repairs and Maintenance of roads, civil structure etc. to R & B Department of Gujarat Government and Panchayat etc. in Gujarat and private parties. Appellant had obtained Service Tax Registration No: ABOFS6733MSD002 and paid Service Tax, when taxable services were provided. Appellant has discharged service tax liabilities from time to time, filed all statutory ST-3 Returns. The Income Tax authorities shared Appellant‟s data of 26AS shown in Income Tax Returns. Perusing said data shared by Income Tax authorities, Central Excise officers at Bhavnagar noticed that the Appellant had short paid Service Tax for the F.Y. 2015-16 to 2016-17. Superintendent of Central Excise, Bhavnagar requested Appellant vide letter No. AR-RJL/3rd party-DGARM/Reg/2020-21 dated 15-04-2021 to provide details of Income receipts and to submit documents related to Service Tax paid, which was not responded by the Appellant who claims not to have received the said letter dated 15-04-2021. The Show Cause Notice No.V/15-126/DEM/HQ/20-21 dated 19-04-2021 demanding total Service Tax of Rs.4,02,21,381/- was issued on the basis of the said 26....
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....on the basis of 26AS Data provided by Income Tax, without proposing denial of benefit of Notification in Show Cause Notice dated 19-04-2021. He submits that foundation of SCN is without legally sustainable base for demanding Service Tax. He submits that the following case laws laid down that SCN is foundation in the matter of levy and collection/recovery of duty, penalty and interest; Revenue cannot argue case not made in SCN and; that Department cannot travel beyond the show cause notice as settled in the following judgments:- 2006 (201)ELT-513(S.C.) - CC v. Toyo Engineering India Ltd. 2007 (215)ELT-489(S.C.) - CCE v. Ballarpur Industries Ltd. 2008 (232)ELT-7 (S.C.) - CCE v. Gas Authority of India Ltd. 2009 (241)ELT-481(S.C.) - CCE v. Champdany Industries Ltd. 2016(334)ELT-577(SC)-Precision Rubber Industries (P) Ltd v/s CCE 2018 (10) GSTL- 479 (Tri. - Mumbai) - Swapnil Asnodkar 2011 (22) STR- 571 (Tribunal)-United Telecoms Ltd. He also submits that aforesaid decisions clearly hold there is no authority in law to improvise any such defective SCN by O-I-O. He also submits that the calculation of Service Tax demand is ....
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.... Tax from Government authorities who have made payments of services long back and Appellant has closed books of accounts. The received amount has to be treated as "Cum-tax-value", in terms of Section 67(2) of Finance Act 1994, even if service tax is held to be payable. 3.8 He also submits that this being a case of interpretation of provisions, extended period cannot be invoked. Appellant has paid the Service Tax wherever service was taxable for amount received from private parties. Since issue involved genuine interpretation of statutory provisions, charge of suppression of facts, wilful misstatement, fraud, etc., cannot be leveled, for initiation of SCN beyond normal period. Appellant pray to set aside demand confirmed against Appellant on the ground of limitation. It is settled law that there must be deliberate attempt by Appellant to suppress facts from Department with an intention to evade payment of Service Tax, which is not existing. Show Cause Notice dated 19-04-2021 for demand of Service Tax for the period from the FY 2015-16 to 2016-17 is issued beyond the normal period. Therefore, the entire demand confirmed against Appellant deserves to be set aside on this ground of ....
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....015-16 (in Rs.) 2016-17 (in Rs.) Value of taxable service as per 26AS 22,02,53,840 18,62,94,256 Income on which Service Tax paid 8,04,56,520 5,32,89,120 Value on which Service Tax not paid 13,97,97,320 13,30,05,136 Rate of Service Tax 14.50 % 15 % Service Tax payable on differential value Rs. 2,02,70,611 1,99,50,770 Total Service Tax payable with cessRs. 4,02,21,381 The impugned Order-in-Original dated 14-09-2022 has confirmed the demand on the following calculations :- Details FY 2015-16 (in Rs.) FY 2016-17 (in Rs.) As per SCN 2,02,70,611 1,99,50,770 Service Tax paid as per ST-3 4,78,947 2,10,161 Service Tax payable 1,97,91,664 1,97,40,609 Total Service Tax payable with cess Rs. 3,95,32,273 5.3 We find that it is settled by now that without conducting any independent inquiry or investigation, the demand of Service Tax can not be sustained only on the basis of "26AS data" provided by the Income Tax authorities to the Central Excise Officers at Bhavnagar. Service Tax demand cannot be raised on the basis of assessment by the Income Tax Authorities. There is no dispute on the fact tha....
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....2005 was concerned." The Tribunal in case of CCE. Jaipur-I Vs. Tahal Consulting Engineers Ltd. - 2016(44) S.T.R. 671 (Tri. Del) has held that demand of Services Tax on the basis of TDS /26AS statements/3CD Statements are not sustainable. Similar view has been taken by this Tribunal at Ahmedabad vide the following decisions :- J.P. ISCON PVT. LTD vsCCE vs 2022 (63) G.S.T.L. 64 (Tri. - Ahmd.) Shresth Leasing & Finance Ltd - 2023 (68) GSTL-143(Tri-Ahmd) FORWARD RESOURCES PVT. LTD - 2023 (69) G.S.T.L. 76 (Tri. - Ahmd.) VATSAL RESOURCES PVT LTD - 2023 (68) GSTL-279(Tri-Ahmd) REYNOLDS PETRO CHEM LTD - 2023 (68) GSTL-292(Tri-Ahmd) State of Gujarat v/s Novelty Electronics - 2018(16)GSTL-87(Guj.) In the above case ofJ.P. ISCON PVT. LTD -2022 (63) GSTL 64 (Tri - Ahmd), it has been held as under :- "18. We have considered the submissions made at length by both sides and perused the records. We find that the Revenue has proceeded in confirmation of the demand on the basis of documents and information provided by the Income Tax Department. The entire case of Revenue in the present matter is based on .xls sheets retrieved by....
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.... In the above decisions, it is the consistent view that demand of Services Tax on the basis of shared data of TDS/26AS/3CD statements are not sustainable. We note that it is settled that Service Tax demand cannot be raised only on the basis of any such assessment made by the Income Tax Authorities. Information or data or documents relied upon loses its evidentiary value in absence of any independent inquiry which was mandatorily required to have been conducted by concerned officers of Central Excise department at Bhavnagar, before issuance of the Show Cause Notice dated 19-04-2021. Further the data provided by the Income Tax Authorities does not appear processed in terms of the Section 36A or 36B of Central Excise Act 1944, made applicable in Service Tax matters by section 83 of Finance Act 1994. Further, the data provided by Income Tax authorities simply show the details of Income received from sale of services and Service Tax paid thereon. However, in Income Tax Returns, no further details of exemptions availed on services requires to be declared, hence, there may be mis-matched in data of Income tax vis-à-vis Service Tax Returns filed, depending facts of cases. 5.5 W....
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..... When communication dated 15-04-2021 issued by Superintendent of Central Excise, which appellant say not received by them, the ACT/Rules has provided unlimited powers to Central Excise officers to search premises of Appellant and to seize documents and collect evidences before issue of SCN to frame correct charges against Appellant on alleged evasion of Service Tax. In this case, officers have chosen not to exercise such unlimited powers to establish case of evasion of Service Tax against Appellant. It was necessary for Department to specify activity and nature of service that was to be taxed under specific clause of services or declared services described in the Finance Act 1994. The case laws cited by the appellant hold that Revenue cannot argue a case which was not made out in SCN and adjudicating authority cannot travel beyond the SCN, as the law settled by plethora of decisions by Tribunals, and higher forums. The decisions relied upon by Appellant support this view. 5.7 We also find that impugned O-I-O dated 14-09-2022 has not appreciated facts correctly that Appellant has provided services to the Government and local authorities and governmental authorities, which were e....
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....an educational, (ii) a clinical, or(iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: provided that nothing contained in this entry shall apply on or after the 1st April, 2020;"Inserted vide Notification 9/2016- Service Tax to be in effect from 1 March 2016. 13. Services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of,- (a) a road, bridge, tunnel, or terminal for road transportation for use by general public; (b) a civil structure or any other original works pertaining to a scheme under Jawaharlal Nehru National Urban Renewal Mission or Rajiv AwaasYojana; "(ba) a civil structure or any other original works pertaining to the 'In-situ rehabilitation of existing slum dwellers using land as a resource through p....
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....pies of Balance Sheets, trading accounts, Sales Registers, work orders, Invoices, ST-3 Returns for FY 2015-16 to 2016-17 with Audit Report No. AUDIT-III/RJT/VI/32/1118/2016-17, which adjudicating authority has read, yet he passed such incorrect Order. Settled law is that the exemption should be interpreted strictly, but, when eligibility criteria of availing exemption is proved, liberal interpretation should be adopted to allow substantive benefit of an exemption for the assessee for whom exemption is intended to be allowed. Eligibility criteria in this case is providing services to Government Authorities in public work on Roads, Bridges etc, which is not denied in this O-I-O. Appellant has given detailed clarification and documents for services and submitted that they are eligible for exemption by clause No. 12(d), 12(e), 12A(a), 13(a) and 29(h) of Notification No. 25/2012-ST which allows the exemption in services provided to the Government, a local authority or a governmental authority. O-I-O has erred in confirming Service Tax demand on the sale transactions for FY 2015-16 with M/s kunal Enterprise for "sale of Black Trap" and with M/s Vijay Construction for "sale of Asphalt". T....
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....ce of subject SCN, we find that Appellant was a Registered Service Provider and they had made payment of Service Tax and filed all Statutory ST-3 Returns timely intimating details of availing exemption, which are not objected by Revenue. Audit teams of Central Excise had audited Appellant‟s records on 30-09-2015 and on 16-01-2017 and have cleared Appellant without any audit objection. Department was fully aware of the facts that Appellant had paid Service Tax and filed ST-3 Returns for FY 2015-16 to 2016-17 intimating their claim of Exemption of Notification No. 25/2012-ST, department should have objected on availment of exemption within normal time limit, if revenue had any doubts on the availment of exemption. This being a case of interpretation of provisions, charge of suppression of facts, willful misstatement, fraud, etc., cannot be leveled, for initiation of SCN beyond the normal time limitation. It is settled law that there must be deliberate attempt by the Appellant to suppress the facts from Department with an intention to evade payment of Service Tax, which is not existing in this case. Show Cause Notice dated19-04-2021 for demand of Service Tax for F.Y. 2015-16 to ....
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....r 85,69,162 FONDS AT VERIOUS VILLAGE With Ladeg 2 Panchayat R & B Div Amreli 199-100 16,21.59,634 Road Work 3. RELIANCE 67.05,517 DEFFENCE Construction Work Tuxable Service AT 4. Project Construction 7,18,629 Div No.4 Rajko: DEEPENING OF PONDS VILLAGE KHAJELI 5. R&B Div State Amreli 1.37,80,351 Road Work 6. Vijay Tank & Vessels Pv: Lid 1,07,42,116 Road Work Taxable Service 7. Jaydeep Construction 29.12,791 Road Work Sub Contract 8. kanal Enterprise 7,55,291 Sales of Black Traps 9. Radhe Associated Mahesana 14,66,060 Bridge Const. Sub Contract 10. Trishul Constractiva co 62.28.793 Bridge Const. Sub Contract 11. Vijay Construction 8.37,936 Sale of Asphalt 12. CLASSIC NETWORK 3,90,480 Road Work Sub Contract 21,55,66,760 21,55,66.760 As per Annexure 201-516 Gross Aml. 6899978 of ledger, less Service Tax Amt. 194461. net sale value Aart. 6705517517-524 Amount of Incarne Matching With Ledger 525-532 Gross Am 14053099 of ledger less Credit Note booked for tale diffrence Amt.272748. ....