TaxTMI 
TaxTMI 
2024 (10) TMI 626
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....sal through this common order. I find that the demand of Service Tax has been made on the basis of tally data resumed by the department in this regard, I find that the SCN alleges that print outs of tally data of both Mis M.P. and appellant no. 2 for the FY 2013-14 to 2015-16 (up to January, 2016) for sales accounts & indirect incomes was produced by the accountant of Mis M.P. The SCN further alleges that original billing (for room, banquet and conference hall) was in the head of M/s M.P. and entry of suppressed bills (for room, banquet and conference hall) was made in the head of appellant no. 2. I further find that though appellant no 2 has been made a noticee to the SCN, but Mis M.P. has not been made noticee to the said SCN. though the said documents were handed over by the accountant of M/s M.P. Even in para 8.2. the SCN mentions the income under various heads separately for M/s MP and the appellant no. 2. No basis has been discussed for taking the figures maintained by M/s M.P as the correct figures representing the values of the taxable services alleged to have been provided by the appellant no. 2. Besides, no cogent reasons have been provided for doubting the authenticity o....
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....lahabad, as reported in 2011(269) ELT 337 and further maintained by the Hon'ble Supreme Court of India, as reported in 2011(269) ELT A 108. 6.2 I find that demand of the Service Tax, based on the computer print outs of M/s M. P, made against the appellant no. 2, is without any corroboration, whatsoever, to establish that the appellant no. 2 provided taxable services, the value of which was over and above the accounts maintained by the said appellant. In the absence of any corroboration to establish the accuracy and authenticity of the records maintained by M/s M. P. (separately registered) as far as the demand against the appellant no. 2 is concerned, the allegation of providing taxable services without payment of appropriate Service Tax cannot sustain. 6.3 The SCN and the impugned order have placed reliance of the statement of accountant of M/s M.P., which as per the appellant no. 2 were not cross verified. In this regard, I find that Hon'ble CESTAT, New Delhi, in the case of M/s Hissar Pipes Pvt. Ltd. Vs CCE, Rohtak, as reported in 2015(317) ELT 136, has held as under : 5. Further, the Tribunal in the case of M/s. Tejwal Dyestuff Industries v. C....
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....ased on statement of the accountant of M/s M.P and accordingly, the same cannot be the basis for confirming any demand. 6.4 The appellant no. 2 has contended that the demand on miscellaneous income has been raised without ascertaining the nature of income and its liability to tax. The adjudicating authority, in this regard, has mentioned that w.e.f 01.07.2012, all services other than those in negative list were taxable and since, the appellant no. 2 had not co-operated in investigation therefore they themselves were to be blamed. I find the above reasons and logic for confirming the demand in respect of miscellaneous income quite untenable. The adjudicating authority has confirmed the demand without ascertaining whether any taxable services were provided against the said income. The allegation that the appellant did not cooperate in the investigation is also without much force as statements of concerned persons were recorded and a substantial amount was also got deposited from the appellant as admitted tax liability. 6.5 The appellant no. 2 has also contended that Service Tax has been demanded on room rents, where the room tariff was less than Rs 1000/- and the de....
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.... dated 31.03.2017 are allowed, and the impugned order is set aside, with consequential relief." 2.0 Aggrieved Revenue has filed this appeal, stating various grounds in the appeal without showing how the findings of facts arrived by the Commissioner (Appeals) on the basis of the records before him is perverse. Grounds stated in the appeal are reproduced below (Paragraph Numbering have been done by us for ease of reference): "1. The Department demanded service tax on the whole amount booked/billed as per Balance sheet of B.N. Viz & others, Catering Bills resumed during search , Ledgers under the head Mansarover Paradise towards Banquet Rent , Misc. Income, Room Rent , Catering sale, Food sale, Bar sale, Wine sale, etc. The respondent was maintaining two separate sets of accounts, one in the name of M/s Mansarover Paradise and other in the name of M/s B.N. Viz & others. Only M/s B.N. Viz & Others was registered with the department for the purpose of making service tax payments to the Govt. exchequer. 2. Shri Ankur Goel Senior Manager of the respondent in his statement dated 11.02.2016 stated that there were total 44 rooms/suite comprising of 6 economy class, 10 bu....
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...., banquet rent were covered in it. It also transpires that Income from sales as shown in the accounts of sales included heads such as catering, food, bar, wine, etc. Accordingly, the department rightly and reasonably took the group summary of these two heads which served the purpose of detecting the evasion whereas the other accounts group summary was not warranted. Further, the respondent had ample time i.e.from 11.02.2016 to 16.3.17 (almost more than 365 days) to submit other evidences, if any, in their favour from cash book, bank book etc. but instead of placing any favourable evidence before the adjudicating authority they were putting forth the submissions which were general in nature. The group summary is a summary of particular accounts and the same can not be generated until & unless there is journal entry in tally and from that the entire group summary is automatically generated. The journal entries in the books of accounts had not been denied by the respondent. Hence, the submission of the respondent that the group summary was not correct and was against the basic principles of accounting, does not appear tenable and convincing. 5. The demand of Service tax had b....
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....ise was not genuine, and until & unless they proved contrary to what the department had worked out from the documents resumed and retrieved from their systems, the same shall remain final, The provisions of Section 36A & 36B of the Central Excise Act, 1944 are equally applicable to service tax matters as provided under Section 83 of the Finance Act, 1994 wherein it has been clearly mentioned that the documents resumed and even computer print outs was a valid evidence under the law. 9. The respondent had misinterpreted the provisions of exemption treating that when there is no declared tariff, there would be no service tax. As per the provisions of Notification No. 31/2011- ST dated 25.04.201 1, service tax is exempted on room rent wherein declared room tariff was less than Rs,1000/- per day. Similarly Sr.No.18r of notification 25/2012-ST dated 20,06.2012 clarifies the definition of room tariff as under. 10. It can be explained as under: suppose a Hotel collects Rs. 2000/- from customer after giving discount of Rs. 200/-, then room tariff will be 2200/-. Therefore the onus is on the respondent to prove that the Bills issued were below Rs. 1000/- for one room/day fo....
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....the records shall be preserved at least for a period of five years immediately after the financial year to which such records pertain. Thus the respondent was bound by Rule 5 supra to keep records for the period 2010-1 1to 2015-16. "Rule 5. Records. ...... 15. Further, the provisions of Rules 4A of the Service tax Rules 1994, inter-alia provides that invoice or any other document is mandatory to be issued within 14 days (upto 31.3.12) and within 30 days (from 1.4.12 onwards) from the date of completion of service or receipt of advance whichever is earlier. 16. The respondent had thus not followed the provisions of the Service Tax Rules. In absence of Bills invoices or any other similar document, it is not ascertainable as whether the respondent had charged service tax in these documents or not and the onus is on the respondent to do so in order to claim the benefit of cum tax price, but they failed to do so. This way, the benefit of the provisions of Section 67(2) of the Act, for the purpose of working out liability of service tax still due will not be available to the respondent. 17. In this regard, the Hon'ble Supreme Court of India in the ....
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....l of the respondent." 3.0 We have heard Shri A.K. Choudhary learned Authorised Representative appearing for the appellant-revenue and Shri Dharmendra Srivastava learned Counsel appearing for the respondent. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 This appeal has been filed by the revenue against the order of Commissioner (Appeal) and by the impugned order appeals of four distinct persons have been disposed of. Single appeal has been filed stating respondents follows on ST-7: 1. M/s B N Viz and Others, Mansarovar Shopping Complex, Delhi Road, Moradabad 2. Shri Rishi Kumar Chabra, Partner M/s B N Viz and Others, Mansarovar Shopping Complex, Delhi Road, Moradabad. No other appeal has been filed making any other person respondent despite the defect memo being issued to the appellant revenue. As per the Defect Order Sheet dated 714462018 dated 23.04.2019, following was observed: "2. From the appeal memo filed by revenue, we note that the name of both the respondents stand indicated in the appeal memo as respondents and inasmuch as, revenue is not required to give an....