TaxTMI 
TaxTMI 
2024 (8) TMI 202
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....up of income shown in balance sheets for FY 2007-08 to 2011-12 and on scrutiny, the department observed that the respondent had shown income heading "WCT Return" for FY 2007-08 to 2011-12, and there was a wide gap between the amount under WCT return and the amount on which they had paid service tax under "Works Contract service". The works contract income (shown under the head/WCT) appeared to be classifiable under the service category "Works Contract services (WCS)". Consequently, the department alleged that service tax amounting to Rs. 18,95,70,056/- on the differential amounts appeared to be demandable from them under the category of "Works Contract services" for FY 2007-08 to 2011-12. As per ST-3 Returns and service tax payment details for the period October 2007 to March 2008 submitted by the respondent, it appeared that the respondent had availed 67% abatement on taxable value under Notification 01/2006-ST dated 01.03.2006 and discharged service tax liability by availing CENVAT credit on input services. It appeared that they had wrongly availed the benefit of abatement under Notification No. 01/2006 dated 01.03.2006 as they had failed to fulfill the conditions laid down there....
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....uracy of the income with Balance Sheet, ST-3 returns, VAT records and other records. It also certified that the respondent had correctly paid their service tax liability on billing basis. The CA certificate merely certified the fact of discharging the tax liabilities on billing basis by the respondent but failed to certify whether the respondent had discharged their tax liabilities correctly in respect of Works Contract Services. As regards the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007 from the CA Certificate, it is evident that the cost of material of Rs. 56,64,85,988/- consumed has been subtracted from the total taxable turnover indicated in para B of CA certificate to equate with "Total Taxable Turnover as in ST-3 Returns" which is clearly against the provision of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007. Hence the reconciliation certified by the above said CA certificate is erroneous. In view of the legal position above, it is clearly evident that the Adjudicating Authority has gravely erred in dropping the demands of Service tax amounting to Rs. 18,95,70,056/- for the period 2007-08 to 2011-12 raised vide ....
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....y in India except the state of Jammu and Kashmir. In the instant case, the services were received and consumed by the respondent on foreign soil in UAE i.e., outside India and the said services were provided by the entity located in UAE i.e., also outside India. Hence, the respondent was not liable to pay any service tax on the amount paid by it to M/s Parah International FZCO in foreign currency. Accordingly, the demand confirmed under the impugned order is not tenable and thus the impugned order is liable to be quashed. In support of his submission, ld. Counsel relied upon the following decisions:- * All India Federation of Tax practitioners vs. UOI 2007-TIOL-149-SC-ST: 2007(7) STR 625 (SC): AIR 2007 SC 2990 : 2007(10) SCALE 178: (2007) 7 SCC 527 * Orient Crafts Ltd. Vs. UOI 2006 (4) STR 81 (Del.): 2006-TIOL-271-HC-DEL-ST * M/s. Haridas Exports Vs. All India Float Glass Mfrs. Association 2002(145)ELT 241 (SC): AIR 2002 SC 2728: (2006)6 SCC 600 * ITO and others vs. Sriram Bearings Ltd. And others (1997) 224 ITR 724: (1997)10 SCC 332 4.1 The Learned Counsel also submitted that that even it is assumed that Service Tax is required to be paid, CENVAT credit thereof will be av....
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.... appellant has submitted a CA certificate dated 19.03.2016 certifying that the appellant has paid correct service tax liability for the period 2007-08 to 2011-12, which has been duly acknowledged by the Adjudicating Authority in the impugned order. Further, he contended that the Department had rightly dropped the demand for the period 2012-13 whereby the demand was proposed under best judgement assessment without considering the details and documents submitted by the appellant. The appellant submitted a letter dated 21.04.2014 wherein the turnover pertaining to works contract services had been indicated. The appellant had also submitted CA certificate dated 22.08.2016 certifying that the appellant had correctly discharged the service tax on the works contract services, which has been acknowledged in the impugned order. 5. We have heard the contentions of the Learned AR and the Learned Counsel for the respondent, and perused the case records. It is important to note that the present is a departmental appeal filed against the impugned order for dropping of a portion of demand. The appellant has not filed any cross objection to this appeal. 6. At the outset we note that the ld. Coun....
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....n it was held that service tax is leviable only on the amount received by service provider and not on amount still due from parties. Going further, we note that the adjudicating authority has relied on CA Certificate dated 19.03.2016 which has certified that the appellant had discharged his tax liability on receipt basis till 30.06.2011 and on billing basis from 01.07.2011, in order to drop the demand. The ld AR has contended that the CA certificate dated 22.08.2016 issued by the statutory Auditors namely R. Khattar and Associates of the respondent pertained to the period 2012-13 only. However, we observe that the adjudicating authority has relied on the CA Certificate dated 19.03.2016. We note that similarly, for the period 2012-13, the adjudicating authority dropped the demand based on the reconciliation of Balance Sheet with ST-3 returns for the year 2012-13 vide CA Certificate dated 22.08.2016 issued by their statutory auditor. There in no evidence adduced by the department to state that the CA certificates issued by the Statutory Auditor was fraudulent or fake. In this context, we note that the Tribunal in the case of M/s MAN TRUCK & BUS INDIA P. LTD. versus COMMR. OF CUS., G....
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....ence of any such counter, it is held that unjust enrichment is not applicable to the existing facts on records. 7. In view of the above observations, appeals filed by the appellant are allowed with consequential relief, if any." 6.2 In the instant case, we find that the adjudicating authority has relied on a CA certificate submitted by the appellant which carries a date different from what has been indicated by the department in their review order or what has been submitted by the ld. AR. Further, once the CA certificate has been submitted by the appellant, the onus shifts on the department to negate the certificate to substantiate their allegation. We draw support from the decision of the Hon'ble Madras High Court in the W.P.(MD)No.521 of 2020 and W.M.P.(MD)No.399 of 2020 in the case of Madura Coats (P) Ltd., Vs. The Commissioner of Commercial Taxes, wherein the Court held as follows: - "14. When the assessing authorities could accept the explanation of the assessee for the subsequent years, there is no reason for them to take a different stand in the instant year. Therefore, the orders impugned in the writ petition warrant interference. As regards the aspect, namely, sales r....