TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 48
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....id order, Revenue is in appeal before this Tribunal. Cross appeal is filed by the respondent. Through the cross appeal, the respondent has submitted their arguments against the grounds of appeal and also sought relief in respect of confirmation of service tax demand amounting to Rs.87,676/- and interest and fine and penalty associated with the said confirmation of demand. 2. Brief facts of the case are that the respondent is registered with Service Tax. Revenue received data about the turnover of the respondent for the year 2013-14 on the basis of income-tax return and associated Form-26AS statement and there was a mismatch between the turnover recorded by the respondent for the said year and the value of the services reflected in ST-3 ret....
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....dent under Section 77(1)(d) of Finance Act, 1994 for failure to pay service tax electronically. The original authority also imposed a penalty of Rs.10,000/- on the respondent for failure to furnish correct returns. Aggrieved by the said order through which the original authority dropped the demand of service tax amounting to Rs.292.86 crores, Revenue is before this Tribunal. Respondent has filed cross appeal against the confirmation of demand of service tax of Rs.87,676/- and related penalties. 3. Heard the learned AR for the appellant. He has submitted that the original authority has not verified any record of the original parent contractor of NHAI for whom the respondent has undertaken work as sub-contractor and held that the turnover wa....
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....n of the records and was on the basis of presumption that the entire turnover was for providing taxable service and that such show cause notice itself is not sustainable in law. Learned counsel for the respondent has submitted that the demand in the said show cause notice was without examination of books of account of the respondent and, therefore, the said show cause notice is bad in law. He has further submitted that there should have been investigation into entry of the transactions and Revenue should have established that the said transactions were in respect of provision of taxable service and, therefore, the demand raised in the show cause notice is not sustainable because this Tribunal has repeatedly taken a view that on the basis of....
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....t and without examining the reason for difference in turnover reported in income tax return and ST-3 return. It was presumed in the show cause notice that the entire turnover reported in income tax return was on account of provision of taxable service and by calculating 12.36% of that turnover, service tax demand was raised. The fundamentals of prosecution such as framing charges on the basis of admissible evidence is absent in issue of show cause notice. The basic of any proceeding is to frame charges on the basis of assessee's record and establish that the assesse has short paid calculated and pre-determined amount of service tax and then issue them a show cause notice calling for their explanation as to why the stated amount of service t....
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....d that Revenue did not discharge its burden to prove short payment of service tax. We also hold that the said show cause notice dated 05.10.2016 is not sustainable." b) In the case of, Sharma Fabricators & Erectors Pvt. Ltd. [2017 (7) TMI 168 - CESTAT ALLAHABAD], it was held as follows:- "Surprisingly the draft audit report was the relied upon document. It may be worth mentioning here that the purpose of audit report is to point out any discrepancy to the notice for examination by the executive and it is the duty of executive to examine the records and examine the objection raised with reference to the records and facts of the case and take a view whether there is a sustainable case for issue of Show Cause Notice. Such vital aspects of ....
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.... Act, 1961. We note that without further examining the reasons for difference in two, Revenue has raised the demand on the basis of difference between the two. We note that Revenue cannot raise the demand on the basis of such difference without examining the reasons for said difference and without establishing that the entire amount received by the appellant as reflected in said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services. We, therefore, do not find the said show cause notice to be sustainable. In view of the ....