AI Drafter 
TaxTMI 
TaxTMI 
2024 (8) TMI 1101
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...." was rightly invoked in that case. 2. The appellant was providing taxable services but it had not registered with the service tax department. It provided services to some service providers including M/s Brahamputra Infrastructure Ltd. [BIL] The records of BIL were audited and it was found that the appellant had provided services to BIL exceeding Rs. 10 lakhs as a sub-contractor but had not paid service tax. The department sent a letter dated 31.10.10 to the appellant asking for several details, including, if they were registered with the service tax department and if so, the details of the returns filed and service tax paid. This was followed by some communication between the appellant and the department and thereafter the appellant obtained service tax registration on 26.02.2011 for providing services of "Construction of commercial and industrial buildings and civil structures" and "works contract services". Thereafter, copies of the balance sheet and P&L accounts of the appellant were obtained and its service tax liability for the period 2006-2007 to 2010-2011 was calculated. It was found that the appellant had received an amount of Rs. 14,48,37,733/- during this period on wh....
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....se. Payment year Construction/ Restoration of Road for DDA (Rs.) A. Construction of additional facilities @ Mega houses for DDA (community hall, shopping centre) (Rs.) B. Construction of boundary wall for DD Land/Park (Rs.) C. Construction of Metro Station and Car Parking for DDA (Rs.) D. Construction and maintenance of swimming pool for DDA (Rs.) E. Work done for BIL (Rs.) F. Total (Rs.) 2006- 2007 28,10,103/- 33,17,232/- 5,59,399/- 60,36,031/- 97,66,352/- 14,95,177/- 2,40,04,294/- 2007- 2008 1,52,34,672/- 29,15,220/- 58,88,169/- 6,25,072/- 4,18,241/- 2,50,81,374/- 2008- 2009 34,99,640/- 84,43,266/- 59,646/- 6,07,579/- 9,16,585/- 52,82,379/- 26,71,991/- 2,14,81,086/- 2009- 2010 10,80,866/- 62,86,080/- 15,56,161/- 10,75,329/- 97,89,832/- 41,15,806/- 59,09,830/- 41,05, 850/- 3,39,19,754/- 2010- 2011 1,64,58,692/- 90,59,616/- 2,02,39,211/- ....
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.... (ii) Construction of additional facilities @ mega houses for DDA which included community hall and shopping centre: Learned counsel for the appellant submits that the appellant paid the service tax on the amounts received. (iii) Construction of boundary wall for DDA land/park : This involved five work orders for construction of boundary wall or a portion of it around district park, DDA land, etc. He submits that demand of service tax was confirmed on the amounts received under the head "commercial or industrial construction service". It is not sustainable for the reason that none of these were commercial projects and they were merely parks under the property of DDA which needed construction of boundary wall. Therefore, the appellant had not paid service tax on these amounts as it was not payable. (iv) Construction of Metro Station and Car Parking for DDA : This involved construction of two wheelers/car parking, pedestrian plaza/walkway and construction for Metro Station No. 2 in Dwarka Phase II. Learned counsel submits that this construction is in the nature of public work and was not "commercial or industrial construction" and, therefore, no service tax is pa....
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....ill not be covered by section 73 (3). In other words if the service tax is not paid or short paid by reason of fraud or collusion or willful mis-statement or suppression of facts or violation of provision of Act or Rules with an intent to evade payment of service tax, such cases are not covered by any section 73 (3). SCN has to be issued in such cases as has been correctly done in this case. For the same reason, the penalty under section 78 was also correctly imposed upon the appellant. 11. As far as the payment of service tax is concerned, if the appellant had paid any service tax and can produce challans to that effect, the same can be adjusted against the confirmed demand. 12. We have considered the submissions from both sides and perused the records. 13. Of the six types of services rendered by the appellant, the following services are clearly not commercial in nature and therefore get excluded from the ambit of service tax : (a) Construction of roads for DDA ; (b) Construction of boundary wall for DDA land or park ; (c) Construction of car parking for Metro Station. 14. The appellant claimed that it had already paid service tax on the rem....
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....sultant had advised it not to pay service tax and, therefore, it had no intent to evade cannot be accepted. If this is accepted as a ground, anybody rendering taxable services and not paying tax can simply take the plea that some consultant had advised him not to pay service tax and not take registration and service tax. We, therefore, find that the intent to evade is self-evident in this case. The appellant was waiting for the service tax department to discover its activity and knock at its door. It had not taken registration and it had not paid any service tax until this happened. We, therefore, find that the appellant's case clearly covered by section 73 (4) and is not covered by section 73 (3). We find in the provisions related to invoking extended period of limitation under section 73 and imposition of penalty under section 78 are identical to the provisions of section 73 (4). We, therefore, find no reason to take a different view in this regard to the extended period of limitation or imposition of penalty under section 78. 17. In view of the above findings, we set aside the demand partly to the extent of service tax demanded on the following services : (i) Constru....