TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 197
X X X X Extracts X X X X
X X X X Extracts X X X X
....irectors as well Chartered Accountant, Shri Satnam Singh and also of Head of Finance & Accounts, Shri Anil Mohan Pokhriyal were recorded. Based thereupon and upon the documents as that of ST- 3 returns and balance sheets recovered during search that the difference in value declared by the party in ST-3 returns vis-à-vis the figures shown as 'Revenue from Operations', 'other income' and 'mobilization advance' was noticed. It was observed that for the Financial Year 2011-12 to 2013-14, ST-3 returns have been filed for the Construction of Commercial and Industrial Buildings, however, for the Financial Year 2014-15 returns have been filed for Works Contract Service. The department formed an opinion that the value taken as gross amount is in contravention of the provisions of Section 67 of the Finance Act, 1994 and also contrary to Service Tax (Determination of Value) Rules, 2006. Department was of the opinion that in terms of CBEC letter No. 334/1/2007-TRU dated 28.02.2007, the valuation method as suggested for works contract service in terms of Notification No. 24/12-ST dated 06.06.2012 would have been applicable for computing value even for Construction of Industrial and Comme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts. Even for the third appeal by the company, one of the prayer is for setting aside penalty. It is mentioned that the company had regularly been audited during years prior to the year in question and nothing incriminating was found against the company. It is submitted that Shri Anil Mohan Pokhriyal has duly submitted while replying to the queries that there is no discrepancy as is alleged in the company's record. All the documents were made available to the investigating team. Nothing incriminatory was found against Shri Anil Mohan Pokhriyal nor even against Retd. Col. Swarn Kumar Makin. But the submissions have not been considered by the adjudicating authority and the penalty has been imposed without any fault of the directors and even on the company penalty has wrongly been imposed. The order of imposition of penalty is accordingly prayed to be set aside. 4.1 On behalf of company, M/s. Makin Developers Pvt. Ltd., also it is impressed upon that they were registered with the department since 08.08.08 under the category of 'Construction Services, other than residential complex'. They stated that three audits of their services were conducted by the Departmental Officers for the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of commerce or industry. With these submissions even company also prayed for setting aside not only the penalties imposed but also the demand confirmed. Appeals are accordingly prayed to be allowed. 5. Per contra learned DR has mentioned that the adjudicating authority has been meticulous and absolutely reasonable while passing the order under challenge in this appeal. Major portion of demand has already been dropped by the adjudicating authority itself. It has been observed, in several words, that the appellant did not disclose the quantum of taxable services rendered by them during the period specified in the impugned notice. It was only during the course of investigation that the true facts could be brought to light. Hence the case has been held to be that of deliberate and willful suppression of facts when correct details were not filed in their returns. In these circumstances, the imposition of penalty cannot be questioned. 5.1 With respect to demand of service tax from M/s Makin Developers Pvt. Ltd., it is mentioned that prior to the Negative List Regime i.e. 01.07.12, the service of Works Contract Service was defined under erstwhile Section 65(105) (zzzza) of the Finance ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e penalty be imposed on assessee and/or its representative/in charge. The SCN is therefore held to be barred by time. We draw our support from the decision of Hon'ble Apex Court in the case of Collector of Central Excise Vs. Chemphar Drugs & Liniments reported as 1989 (40) E.L.T. 276 (S.C.), wherein it was held that extended period is applicable only when something positive other than mere inaction or failure on part of the assessee is proved. There has to be the evidence about conscious and deliberate withholding of information on part of the assessee. I observe that such evidence is missing in this case, therefore, not sustainable. 8. We further observe that Shri Anil Mohan Pokhriyal, admittedly, is not the Director of the company, he was a senior employee acting on the mandate of the directors. Otherwise also except his own statement, there is no incriminating evidence against him to prove that he had willfully suppressed the facts with an intention to evade the payment. He being the employee, question of him being the beneficiary of alleged evasion does not at all arises. Once there is absence of motive, in the light of criminal jurisprudence, mens rea cannot be attributed. Th....