2024 (2) TMI 14

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... demand of Service Tax of Rs.56,39,991/- alongwith interest and imposed equal penalty. Interest of Rs.30,585/- for late payment of Service Tax and penalty of Rs.1,100/- for late filing of ST-3 Returns were also imposed. 2. Briefly stated, the facts of the case are that the Appellant is providing Security Agency Services. Audit scrutiny was conducted by the Department, during which it was noticed that lesser amount was reflected in the value of taxable services shown in ST-3 Returns as compared to Revenue from Operations in the Balance Sheets for F.Y 2009-10 and F.Ys 2011-12 and 2012-13. Duly audited Revised Balance Sheet for F.Y 2009-10 was submitted by the Appellant in which the Revenue from operations is lower than the amount shown in ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on as averred in the Show Cause Notice. He states that the Revised Balance Sheet cannot be considered as an afterthought as FIR was filed in August, 2010 for loss of records and Balance Sheets cannot be considered selectively to consider the Balance Sheet which leads to levy of additional Service tax on the Appellant while not considering the Revised Balance Sheet which does not impose any additional service tax. 5. Learned Counsel for the Appellant further submits that income shown to the Income Tax authorities could not be the basis to determine Service Tax liability unless there is any proof that the income was towards a taxable service. He relies on the order of the Tribunal in Kipps Education Centre vs. CCE Ludhiana 2009 (13) S.T.R.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... (Tri.-Bang.) Tempest Advertising (P) Ltd. vs. CCE Hyderabad-II 2007 (5) S.T.R. 312 (Tri.- Bang.) CCE Ludhiana vs. Deluxe Enterprises 2011 (22) S.T.R. 203 (Tri.-Del.). 7. Learned counsel also states that extended period of limitation cannot be invoked as the Appellant was regularly filing S T - 3 Returns, so the Department cannot take a stand that it is only on going through the Balance Sheet that it could examine the factual position. We find that the CBEC Circular No.113/7/2009-S.T., dated 23-4-2009 vide F.No.137/158/2008-CX. 4 and CBEC Circular No.185/4/2015-ST dated 30.6.2015 vide F.No.137/314/2012 clearly directs the Assessing Officer to effectively scrutinize the returns at the preliminary stage as held by the Tri....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... He also relies on the following decisions :- Hindalco Industries Ltd. Vs. CCE Allahabad 2003 (161) E.L.T. 346 (Tri-Del). Kirloskar Oil Engines Ltd. vs. CCE Nasik 2004 (178) E.L.T. 998 (Tri-Mum). CCE Raipur vs. Rajaram Maize Products 2010 (258) E.L.T. 539 (Tri-Del). Rolex Logistics Pvt. Ltd. vs. CST 2009(13) S.T.R. 147 (Tri-Ban). 10. Learned counsel also submits that in the absence of any positive evidence like recovery, or incriminating statements, or invoices, or contracts, or bills it cannot be alleged that there was malafide intent to evade service tax. In support, he relies on the following judgements :- (i) CCE vs. Chemphar Drugs & Liniments 1989 (40) E.L.T. 276 (SC). (ii) Pus....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....demand of Rs.8,35,930/- at the rate of 10.30%, thereby wiping out any alleged service tax difference of Rs.7,72,960/- for F.Y 2009-10. 16. We find that it has been held in a catena of decisions that without any evidence, only the amount received by the Appellant was liable to Service Tax, amounts reflected in Balance Sheet cannot be used to determine the Service Tax liability. The Hon'ble Madras High Court in Firm Foundations and Housing (supra) held that the reporting of income in the P and L is irrelevant for the purposes of determination of service tax payable and thus the basis of the impugned assessment is erroneous. Moreover, income reflected in the Balance Sheet is for Income Tax purposes, which cannot be used for the purpose of s....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... as held in Gannon Dunkerley & Co Ltd (supra). 18. We find that extended period of limitation cannot be invoked solely on audit queries and objections as held in Larsen & Toubro (supra) and Chemix Oil (supra). We find that the Appellant is a Private Limited Company and therefore the Profit/Loss Account and Balance Sheet is a public document accessible from Registrar of Companies website. Therefore, no suppression can be alleged to invoke the extended period as held in Hindalco Industries Ltd. (supra), Kirloskar Oil Engines Ltd. (supra), Rajaram Maize Products (supra) and Luit Developers (supra). It is our considered view that mere non-payment of tax will not sustain the allegation of suppression of facts for invoking extended period as n....