TaxTMI 
TaxTMI 
2024 (7) TMI 308
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.... and for this purpose they had registered with the jurisdictional departmental authorities. Intelligence was gathered by the Directorate General of Central Excise Intelligence (DGCEI), presently known as Directorate General of GST Intelligence (DGGI), Zonal Unit, Mumbai that various Film Production Companies (FPCs) have entered into commercial agreements with various Music Production Companies (MPCs) including the appellants. Under such agreement, the FPCs grant certain rights to MPCs for commercially exploiting the music of the movie for which MPC agrees to pay specified amounts to FPC. Further, DGGI also found that such agreement also stipulate that MPC shall spend a specified amount for the purpose of marketing, publicity and promotion of the film and film music across all media. DGGI interpreted that since the marketing and publicity cost is allowed to be retained by the MPC from the royalty earned by them from selling the music or video, it appeared to DGGI that the amounts are for promotion and marketing of the film produced by the FPC, and therefore these activities are liable to service tax under the category of Business Auxiliary Service (BAS) wherein the MPC is the ....
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....arned Commissioner of CGST, Mumbai West, in confirmation of the adjudged demands. Being aggrieved with the above order, the appellants have preferred this appeal before the Tribunal. 3.1 Learned Senior Advocate representing the appellants has submitted that the appellants are engaged in the activity of acquisition and exploitation of copyrights subsisting in sound recordings and audio visuals of the same along with musical and literary works contained and embodied therein. He submitted that this is done by the appellants by acquiring the copyrights from the authors/owners and by paying the stipulated consideration; these copyrights are then commercially exploited by assigning/licensing their rights in the works of various clients. He further submits that production of film and creation of film song video or an album, which is independent of film, are independent art, literary, drama, music works within the meaning of Copyright Act, 1957. By explaining various clauses of the agreements entered into by the appellants with the FPCs, learned Senior Advocate stated that the appellants only acquire certain rights from FPCs in respect of sound recording and audio visuals (son....
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.... rights of which are not the subject matter of this agreement executed by the appellant with FPC. Thus, he stated that there is no element of rendition of service involved on which any service tax would be leviable. Accordingly, he submitted that the demand of service tax in the impugned order is without any basis in law and contrary to the charging provisions of the Finance Act. Thus, he claimed that there is no case for provision of Business Auxiliary services by the appellants to the FPCs and therefore the demand of service tax on this head is not sustainable. 3.3 For the period w.e.f. 01.07.2012, levy of service tax is on all the services except negative list of services, and the term 'service' is defined in terms of Section 65B(44) ibid wherein the essential ingredient of services are 'any activity carried out by a person for another' and 'consideration for undertaking such an activity'. It is submitted by the learned Senior Advocate that in their case, the activity has been undertaken by the appellants on their own account for themselves and it cannot be said to be an activity undertaken by the appellants for another. The aspect of financial assistance, support of othe....
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.... tax is righty leviable on such services. Thus, he pleaded that the impugned order is sustainable and the appeal filed by the appellants may be rejected. 4.2 Learned AR further relied upon the following judgements in support of their stand: (i) Infosys Technologies Ltd. Vs. The Special Commissioner and Commissioner of Commercial Taxes - 2008-TIOL-509-HC-MAD-CT. (ii) Tata Consultancy Services Vs. State of Andhra Pradesh - 2004TIOL-87-SC-CT-LB (iii) Housing & Dev. Corporation Ltd. (HUDCO) Vs. C.S.T. Ahmedabad - 2012 (26) S.T.R. 531 (Tri. - Ahmd.) (iv) Commissioner of C. Ex. Surat-I Vs. Neminath Fabrics Pvt. Ltd. - 2010 (256) E.L.T. 369 (Guj.) 5. Heard both sides and perused the records of the case. We have also perused the additional written submissions in the form of paper books submitted in this case by both sides. 6. The issues involved in this appeal is to determine the following issues viz., (i) whether the services provided by the appellants are leviable to service tax under the taxable category of 'Business Auxiliary Service' (BAS) or not, in terms of Section 65 (105)(zzb) of the Finance Act, 1994, for the period prior to 01.07.2012;&nb....
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....splayed and the publicity therefore is not limited merely to audio content. In fact I find that the promotion of the music is therefore incidental to the promotion of the film. xxx xxx xxx xxx 44. Further, the time of release of music is also a vital factor in deciding whether M/s Sony Music has caused the marketing and promotion of the film The Noticee Company themselves in their replies have stated that invariably, music is released prior to the release of the film. The objective for the music company is make a few songs extremely popular so that by the time the movie is released, the songs are already playing across TV, radio and online. It is akin to the trailer of the film which is played prior to film release, the sole purpose behind it to publicize, market and promote the forthcoming feature film. Vide letter dated 10.04.2015, M/s. Sony Music provided a copy of ledger showing Media expenditure for marketing and promotion of Music in respect of the movie ' Student of the Year' it is seen that expenditure has been incurred for television spots for the period 28.08.2012 to 03.11.2012. Further, the movie 'Student of....
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.... the services provided by the Noticee Company to the FPCs fall under the category of Business Auxiliary Services as defined under Section 65(19)(i)of the Finance Act, 1994. In this connection, I draw reference to Section 2(7) of Sale of Good Act, 1930 whereby "Goods" means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Goods are in a deliverable state within the meaning of this Act when they are in such a state that the buyer would, under the contract, be bound to take delivery of them. Further I rely on the ruling in the case of M/s. Infosys Technologies and Ltd (2008-TIOL-509-HC-MAD-CT) and that of Hon'ble Supreme Court in the case of M/s. TATA Consultancy Services vs. State of Andhra Pradesh (2004-TIOL-87-SC-CT-LB), Wherein, both these rulings warrant that utility/marketability/capacity of being brought and sold, by whatever name called, is a key attribute for qualification of goods. Since the Noticee company has indulged in promotion or marketing of goods (Feature Films) belongin....
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....behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or Explanation..-For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in subclauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any activity that amounts to manufacture of excisable goods. (105) "taxable service" means any service provided [Inserted by the Finance Act, 2005, w.e.f. 16-6-2005] or to be provided,_ (zzb) to a client, by [Substituted for "a commercial concern" by the Finance Act, 2006, w.e.f. 1-5-2006.] any person in relation to business auxiliary service;" Post Negative ....
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....egulation) Act, 1998 (17 of 1998); (b) by a foreman of chit fund for conducting or organising a chit in any manner.] Explanation 3.- For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4.- A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; Section 66B. There shall be levied a tax (hereinafter referred to as the service tax) at the rate of [Substituted for "twelve" by the Finance Act, 2015, w.e.f. 1-6-2015][fourteen] per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Valuation of taxable services for charging service tax. Section 67. (1) ....
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.... person liable to pay service tax, where the transaction of taxable service is with any associated enterprise." 8.1 On careful reading of the definition of taxable service, under Section 65(19) ibid read with Section 65(105)(zzb) ibid, as applicable for the period prior to 01.07.2012, it is clearly provided therein that the services under the taxable category is 'Business Auxiliary service' and such services are brought in the scope of service tax levy as taxable category of service if such services, which are being provided or to be provided, by any person to a client. In the definition of 'Business Auxiliary Service' the activity of promotion or marketing or sale of goods produced or belonging to or service provided by the client is included as one of the taxable service. In the present matrix of the case, the appellants have obtained music and song video rights from the Film Producer Companies (FPCs) under a contract and the appellants have become the right holders during the contractual period. Thus, prima facie, we find that the appellants are not in the nature of service provider and client relationship with the persons to whom they had contracted to and further, the appell....
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....ir client. Further, where ever service tax liabilities have arisen it is stated by the appellants that they have duly discharged the same and the same has not been disputed by the Revenue. 8.3 In order to further examine whether the services provided by the appellants is covered under the scope of any other services or not, particularly after introduction of negative list with effect from 01.07.2012, wherein the levy of service tax on all services other than those contained in the negative list, we have also examined the relevant provisions of the Finance Act, 1994 and Rules framed thereunder. We find that in order to qualify that the activities undertaken between the appellants and the FPCs amounting to service for levy of service tax, such activities are to fulfil the definition of service as provided under Section 65B(44) ibid. In terms of such definition the activities shall be carried out by a person for another for consideration. From the agreement entered into between the appellants and FPCs, it is clearly spelt out that the marketing of music and song video rights are undertaken for the cause of appellants and not for the cause of FPCs. The finer distinction of music or so....
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....d under the category of service for which levy under Section 66B ibid would apply. Further, such amount in the absence of provision of any service, cannot convert a consideration not wholly or partly consisting of money, to be taxable value for payment of service tax. 9.1 We have perused the relevant clauses of the aforesaid agreements submitted as a part of the appeal paper book. The relevant clauses of the said agreement are extracted and given below: "MUSIC AND SONG VIDEO RIGHTS LIMITED PERIOD ASSIGNMENT AGREEMENT This Music and Song Video Rights Limited Period Assignment Agreement ("Agreement") made this day of April 19, 2012, BY AND BETWEEN: SONY MUSIC ENTERTAINEMENT INDIA PRIVATE LIMITTED, a company incorporated under the Companies Act, 1956 and having its registered office at Span Centre, South Avenue, Santacruz West, Mumbai 400 054, hereinafter referred to as "Sony Music" (which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) of the ONE PART; AND DHARMA PRODUCTIONS PRIVATE LIMITED, a company incorporated under the Companies Act, 1956 and having its registered office a....
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.... and Song Videos shall be provided separately in the Producer to Sony Music. 1.18 "Song(s)" shall mean sound recording of synchronized musical and lyrical works being the song(s) incorporated in the Film. 1.19 "Song Video(s)" means the audio-visual(s) of the Song(s), i.e. 'song married print' forming part of the Film and includes the performances and works contained therein. Song Video(s) includes part(s) thereof. 2. ASSIGNEMENT OF RIGHTS 2.1. In consideration of part MG Amount (defined hereinafter) paid on the execution of this Agreement by Sony Music to the Producer, the receipt of which the Producer hereby acknowledges, and part MG Amount (defined hereinafter) to be paid to the Producer as herein provided, the Producer hereby exclusively assign, for the Term, to Sony Music, all intellectual property rights including copyright in the Said Works including but not limited to the following rights on a worldwide basis ("Territory") for the Term (collectively referred to as "Rights"): 2.1.1 Physical Rights. 2.1.2 Digital Rights; 2.1.3 Broadcasting Rights; 2.1.4 Public Performance Rights; 2.1.5 Publishing Rights including mechanical rights; ....
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....ce before making the payment of the MG Amount to the Producer. 8. RECOUPMENT & ROYALTIES. 8.1. It has been agreed between the Parties that Sony Music shall be entitled to recoupment of the MG Amount and other Marketing Spend and advertising expenditure in the manner and as provided for in Schedule2 herein. 9. OBLIGATIONS OF THE PARTIES 9.1 Delivery, Publicity and promotion material: The Producer agrees to and shall deliver the publicity and promotional material, as set out in Schedule 3 ("Delivery Material"), free of charge, to Sony Music at least 4 (four) weeks prior to the release of the Said Works to the public by Sony Music. 9.2 Sony Music will draw up an exhaustive marketing plan for promoting the sales in all formats and exploitation of the various rights mentioned herein throughout the Territory in consultation with the Producer prior to the release of the Film. Sony Music and the Producer have agreed that for this purpose Sony Music marketing budget shall be of Rs. 2,50,00,000/- (Rupees Two Crores Fifty Lacks Only) ("Marketing Spend") excluding service tax towards the marketing, publicity and promotion of the Film and the Said Works. &n....
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....are jointly referred to as Assignors. The First Part, Second Part and Third Part are jointly referred to as Parties BACKGROUND (A) WHEREAS the Assignors are the equal and joint owners of the copyright of the Audio & Audio-visual songs of the film "Bhaag Milkha Bhaag" in the Hindi language along with underlying musical and lyrical works. (B) WHEREAS the Assignors are the equal and joint owners of the Copyright in the original Songs, Song Videos etc as described in the Contract Works, and more particularly identified and particularised in Schedule 1 of the Cinematograph Film, details and particulars of which are given in Schedule 2. WHEREAS the Assignors represent and warrant to the Assignee that their ownership of the Copyright in the Contract Works is equal and joint, unencumbered, free from any claim of whatsoever nature and the Assignors have the absolute right, title and interest in the same and have right to assign the same in favour of the Assignors. (C) AND WHERAS the Assignors are desirous of assigning copyright in the Contract Works of the Cinematograph Film in favour of the Assignee for the Assignee is desirous of acquiring the Copyrights in the Contra....
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....al, publicity and promotional material free of charge to the Assignee on or before the Delivery Date: 4.2 The Masters containing all the Songs, forming part of the Film, in CD format, perfectly edited shall be delivered 8 weeks prior to the theatrical release of the Film and the music release of the Film shall be 5(five) to 6 (six) weeks prior to the theatrical release of the Film, i.e. on or before 12th July, 2013, with a grace period of 3 months, provided the Master DAT has been delivered six weeks prior to music release date. 4.3 CD Masters containing International Tracks / Music Tracks Minus 1s, multi-tracks, (mixed already covered in Master in 4.1) and unmixed tracks of all Songs inlay designs and images from the Audio Visual Songs shall be delivered within 8 weeks prior to theatrical release of the film and the music release of the Film shall be at least 5 (five) weeks prior to the theatrical release of the Film, i.e. the theatrical released date being 12th July, 2013 by the Assignors in writing and such date shall have a grace period of 3 months, provided the delivery of Master DAT is eight weeks prior to music release date. 5. MARKETING AND PROMOTION AC....
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....s subject to a maximum of 15 minutes (on the audio cinema property, where dialogues will be on exclusive basis, but otherwise dialogues will be on non-exclusive basis), Background score of the Film. 6. Or parts thereof of any of the above. 9.2 From plain reading of the aforesaid agreement entered into by the appellant, it transpires that the said arrangement is between the appellants and Film Producer Companies (FPCs) for a specified period, and the scope of activities or work to be performed by the appellant is provided in the Article 2 - Assignment of Rights and Article 5 - Reserved Rights, clearly brings out the rights that have been offered to the appellants as defined under clause 1.17, as 'said works' relate to only songs and song videos of the film; whereas the rights retained by FPCs include all other rights in exploiting the film for various purposes including merchandising, gaming, animation films, remaking etc.; Intellectual Property Rights (IPR) including copyrights of the producer in the film. Thus, the basis for treating the rights obtained by the appellants in the agreement and marketing of music and song video as the activity of ma....
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....sing the brand name, service marks and trademarks of the franchisor. Any indirect result, because of advertisement cannot, therefore, be called an extra consideration in terms of section 67 of the Act. Unless an amount is charged by the service provider to the service recipient, it does not enter into an equation for determining the value on which Service Tax is payable. 34. A Larger Bench of the Tribunal in Bhayana Builders (P) Ltd. vs Commissioner of Service Tax - 2013 (32) S.T.R. 49 (Tri. - LB) observed that "implicit in the legal architecture is the concept that any consideration whether monetary or otherwise, should have flown or should flow from the service recipient to the service provider and should accrue to the benefit of the latter." In the said decision, the Larger Bench made reference to the concept of 'consideration', as has been expounded in the decision pertaining to Australian GST Rules, wherein a categorical distinction has been made between "conditions' to a contract and 'consideration'. It is prescribed under the said GST Rules that certain 'conditions' to the contract cannot be seen in the light of 'consideration' for the contract and the fact th....
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....e service provider is neither an amount "charged" by the service provider nor can it be regarded as a consideration for the service provided by the service provider. In fact, it has no nexus whatsoever with the taxable services for which value is sought to be determined." 36. The aforesaid view was reiterated by the Supreme Court in Intercontinental Consultants, wherein it was observed: "23. Obviously, this Section refers to service tax, i.e., in respect of those services which are taxable and specifically referred to in various subclauses of Section 65. Further, it also specifically mentions that the service tax will be @ 12% of the 'value of taxable services'. Thus, service tax is reference to the value of service. As a necessary corollary, it is the value of the services which are actually rendered, the value whereof is to be ascertained for the purpose of calculating the service tax payable thereupon. 24. In this hue, the expression 'such' occurring in Section 67 of the Act assumes importance. In other words, valuation of taxable services for charging service tax, the authorities are to find what is the gross amount charged for providing 'such' taxabl....
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....t that the advertisement was for the business promotion of the franchisee. 49. In the first instance, as noticed above, the Appellant did not receive any consideration for advertisement made by the franchisee in terms of Clause 5 of the agreement. The Principal Commissioner, therefore, fell in error in concluding that some non-monetary consideration had been received by the Appellant towards the advertisement made by the franchisee, which non monetary consideration was required to be determined under Rule 5(1) of the 2006 Rules. Even if it is assumed that some non monetary consideration had been received by the Appellant, thentoo the same could not have been determined under Rule 5(1) of the 2006 Rules. Rule 5(1) of the 2006 Rules was struck down by the Delhi High Court in Intercontinental Consultant, which judgment was upheld by the Supreme Court. 50. Section 67 of the Act deals with valuation of taxable services for charging Service Tax. Sub-section (1) of section 67 provides that where Service Tax is chargeable on any taxable service with reference to its value, then such value shall, where the provision of service is for a consideration in money, be the gross amount charged ....
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....In taking this view, the High Court observed that the expenditure or cost incurred by the service provider for providing the taxableservice can never be considered as the gross amount charged by the service provider "for such service" provided by him. 52. In the Appeal filed by the Department, the Supreme Court noticed the various reimbursable claims which were included in the gross value. The Supreme Court noted that Rule 5 does bring within its sweep the expenses which are incurred while rendering the service and are reimbursed and, therefore, what was required to be decided was whether section 67 of the Act permits subordinate legislation to be enacted as was done by Rule 5. It needs to be noted that prior to 19 April, 2006, in the absence of a Rule, the valuation was required to be done as per the provisions of section 67 of the Act. The Supreme Court noticed that the charging section 66 provides that there shall be levied Service Tax @ 12% of the value of taxable services referred to in the sub-clauses of Section 65 and collected in such manner as may be prescribed. Thus, the Service Tax is on the "value of taxable services" and, therefore, it is the value of the serv....
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....g videos of film under a temporary transfer arrangement are not liable to service tax as 'Business Auxiliary Service'. Further, we also find that the agreements entered by the appellants also provide for certain expenses to be incurred by them which could be an adjustment from the revenues. Thus, we do not find that sharing of part of the consideration alone under the contractual obligations would tantamount to provision of service towards Business Auxiliary Services, provided by appellants by treating the rights owner as their clients. 10.1 As regards the penalties proposed in the show cause notice, the learned Commissioner had imposed penalty equal to the amount of service tax demanded under Section 78 ibid. 10.2 The legal provisions contained in Section 73(1) ibid provide that extended period can be invoked for demand of service tax, in situations where there is any involvement of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any of the provisions of this Chapter or of the Rules made thereunder with intent to evade payment of service tax, by an assessee. We find that neither in the show cause notice nor in the impugned order, t....
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....he show cause notice was issued on 2-8-2001, more than six months after the appellant had imported furnace oil on behalf of Uniworth Ltd. in January, 2001. This time period of more than six months is significant due to the proviso to Section 28 of the Act. The Section, at the relevant time, read as follows : 28. Notice for payment of duties, interest, etc. - (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty has not been levied or has been short-levied or the interest has not ....
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....wing observations : xxxxxx xxxxxx xxxxxx 18. We are in complete agreement with the principle enunciated in the above decisions, in light of the proviso to Section 11A of the Central Excise Act, 1944. However, before extending it to the Act, we would like to point out the niceties that separate the analogous provisions of the two, an issue which received the indulgence of this Court in Associated Cement Co. Ltd. v. Commissioner of Customs [(2001) 4 SCC 59] 3, at page 619 in the following words : 53. ... Our attention was drawn to the cases of CCE v. Chemphar Drugs and Liniments [(1989) 2 SCC 12], Cosmic Dye Chemical v. CCE [(1995) 6 SCC 117], Padmini Products v. CCE [(1989) 4 SCC 275], T.N. Housing Board v. CCE [1995 Supp (1) SCC 50] and CCE v. H.M.M. Ltd. (supra). In all these cases the Court was concerned with the applicability of the proviso to Section 11A of the Central Excise Act which, like in the case of the Customs Act, contemplated the increase in the period of limitation for issuing a show cause notice in the case of non-levy or short-levy to five years from a....
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....atement" and "suppression of facts" are to be qualified by the word "wilful", as was done in the Cosmic Dye Chemical case while construing the proviso to Section 11A, the making of such a wilful misstatement or suppression of facts would attract the provisions of Section 28 of the Customs Act. In each of these appeals it will have to be seen as a fact whether there has been a non-levy or short-levy and whether that has been by reason of collusion or any wilful misstatement or suppression of facts by the importer or his agent or employee. (Emphasis supplied)" 23. It is important to note the proviso to Section 11A of the Excise Act at this stage. It states that : "Where any duty of excise has not been levied or paid or has been shortlevied or short-paid or erroneously refunded, by the reason of - (a) fraud; or (b) collusion; or (c) any wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requirin....
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....rovisions is the same, the various judgments of the Supreme Court discussing the interpretation of proviso to Section 11A of the Excise Act can be extended to interpret Section 73(1) of the Finance Act. Further, since proviso to Section 28 of the Customs Act is parimateria to proviso to Section 11A of the Excise Act (as held in Uniworth), the interpretation of proviso to Section 28 may also be extended to interpret the proviso to Section 73 of the Finance Act. Uniworth (supra) is also authority on the meaning of 'wilful misstatement' and 'suppression of facts'; the Court held that : "... 12. ... The conclusion that mere non-payment of duties is equivalent to collusion or wilful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of nonpayment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or sup....
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....ble just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact." 26. Again, the Supreme Court in Continental Foundation Joint Venture Holding v. Commissioner of Central Excise, Chandigarh-I [(2007) 10 SCC 337 = 2007 (216) E.L.T. 177 (S.C.)], held that : "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or 'collusion' and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equat....