TaxTMI 
TaxTMI 
2025 (7) TMI 1339
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.... to provide the details of amounts received by them in this regard from organizations/Advertising agencies; after repeated reminders the appellant replied vide their letter dated 02.07.2008 that the due service tax on Space Selling services has been deposited by their client namely M/s Pisces Communication Ltd and that they were in the process of getting registered with the Service Tax Department; the appellant was informed vide letter dated 25.07.2008 to get registered and pay service tax; various summonses dated 18.03.09, 09.04.09, 28.04.09, 28.05.09 to were issued; representative from the Office of Transport Commissioner, Haryana, finally appeared and his statement dated 05.06.2009 was recorded and stated that during the period in dispute, they had provided space for display of advertisements on their buses to M/s Pisces Communications Pvt Ltd Delhi, for an amount of Rs 2,52,72,000/- and as per the agreement, their client deposited the service tax on the same; documents in relation to deposit of service tax has already been submitted to the department; revenue was of the opinion that the challans under which, M/s Pisces Communications deposited Tax indicated the Head' Advertisin....
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....ion or Authorities shall be paid by the contractor and not by the Transport Department; the contractor shall be liable to make their own arrangements for payment of such taxes/levies; the contractor will be fully responsible for the consequences for non-payment of any such taxes/levies."; the Appellant had enclosed copies of TR-6 Challans, vide letter No. 1423/AI/ACC dated 21.04.2009, and informed that the service tax on the alleged services has been paid by M/s Pisces Communications Private Limited; in view of the agreement/ contract, dated 19.07.2006, the appellant was of bona-fide belief that they were not required to obtain registration as the Appellant believed that the service tax was duly paid by M/s Pisces Communications Private Limited; merely because the registration was not obtained, it cannot be held that the appellant has an intent to evade payment of taxes. 2.2. Learned Consultant submits also that the appellant had no intention to evade taxes; soon after the receipt of letter from Service Department, they decided to apply for service tax registration and had engaged M/s Vigyan Arora & Co., Chartered Accountants for the purpose; the appellant being Government was n....
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....son, in relation to sale of space or time for advertisement, in any manner; but does not include sale of space for advertisement in print media and sale of time slots by a broadcasting agency or organisation. Counsel submits that the term 'person' become very important; question that arises is whether Government of Haryana i.e. Director General State Transport is a 'person' or not before the onset of negative list regime with effect from 01.07.2012; the term 'Person' was not defined in the Finance Act, 1994 until 01.07.2012; therefore, recourse need to be taken to the definition of 'Person' in General Clauses Act, 1897, for the period up to 30.06.2012; Section 3(42) of the General Clauses Act, 1897 defines "person" to include any company or association or body of individuals, whether incorporated or not;; therefore, 'Person' does not include State/Union Government which is separately defined therein Section 3(23) of the General Clauses Act, 1897 to include both the Central Government and any State Government. He submits that Director General State Transport being a part of the Government of Haryana is not covered within the term "Person" and,....
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....Government Undertakings until Union/State was included in the definition of "Person" by insertion of Section 65(B)(37) w.e.f. 01.07.2012 in the Finance Act, 1994. 3.3. Learned Consultant submits in addition that provisions relating to service tax law were amended with effect from 01.07.2012 providing the definition of 'person' to include 'Government'; however, no tax was payable by the Government in respect of various services because either certain services fall under negative list, or certain services were exempt by a notification or on certain services, tax was payable by the recipient of service under reverse charge mechanism; per force, there was no service tax on services provided by the Government prior to 01.07.2012. 4. Learned Consultant further submits that the receiver of services has already deposited the full amount of service tax due on the value of the taxable service in compliance with the agreement executed between the service provider and the service receiver; there has been absolutely no leakage or loss of revenue to the department; the service tax demand raised against the appellant would result in double Taxation of the services thereby cr....
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....s cannot be made a plea that the payment of tax would amount to double taxation. 5.3. Learned Authorized Representative submits that the claim of the appellants, that the appellants are Government undertaking wherein no personal interest can arise leading to concealment of facts or withholding of tax due to another government department, cannot be accepted as the government while formulating and executing statute did not make any distinction regarding non- payment of service tax by a Government Undertaking; if so, it would have been specifically mentioned in the law that a Government department is exempted from the taxability. He relies on the Air India Limited 2018 (8) GSTL 386 (Tri. - Del.); Bharat Petroleum Corporation 2009 (242) ELT 358 (Tri-Mumbai). He further submits that as appellant had not taken registration and had not filed ST-3 returns within the prescribed time, penalties imposed are justified. He relies on the following: * Om Sai Fabricators (2023) 5 Centax 210 (SC) * Rajasthan Spinning Mills 2009 (238) ELT 3 (SC). * Karnataka Bank Ltd vs State Of A.P. & Ors judgement dated 21 January, 2008 reported as 2008 AIR SCW * Namtech Syst....
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....arged by the service provider for such service which is the value of the service for purposes of calculating the levy of service tax. Section 69 of the Finance Act, 1994 stipulated that every person liable to pay service tax must mandatorily make an application to get itself registered for purposes of service tax within the period prescribed in the rules. Rule 6 of the Service Tax Rules, 1994 prescribe that a person liable to pay service tax is required to deposit the service tax chargeable on the services provided in the bank designated by the Central Board of Excise and Customs in the prescribed format and also submit returns in such regard on quarterly basis. Section 95 of the Finance Act, 2004 added the liability of the service provider to pay Education Cess on the tax levied and calculated under Section 91 read with Section 66. 16. By Finance Act, 2006, Section 65 (105) was amended to add the following to the categories of "taxable service" : - "(zzzm) to any person, by any other person, in relation to sale of space or time for advertisement, in any manner; but does not include sale of space for advertisement in print media and sale of time slots by a broadca....
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....e, though there is no difficulty in accepting that after the amendment of 2000 the liability to pay the service tax is on the appellant as the assessee, the liability arose out of the services rendered by the respondent to the appellant, and that too prior to this amendment when the liability was on the service provider. 39. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between two of them. There was nothing in law to prevent the appellant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent." 20. The above ruling of Supreme Court in the case of Rashtriya Ispat Nigam Limited (supra), however, cannot detract from the fact that in terms of the statutory provisions it is the appellant which is to discharge the liability towards the Revenue on account of service tax. Undoubtedly, the ....
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....icable taxes etc. are to be borne by their customer; immediately on receipt of communication from the Department, they have taken steps to get themselves registered; being a Government Department, they could not get PAN number and TAN number was readily available and therefore, there was a delay in obtaining registration; therefore, extended period cannot be invoked. They also submit that being a Government Department, it cannot be alleged that they have an intent to evade payment of duty as no individual person stands to gain in avoiding the payment of service tax by a State Government Department to a Central Government Department. 8. We find that this Bench of the Tribunal in the case of Himachal Pradesh Road Transport Corporation in Service Tax Appeal No. 56993 of 2013 held that: 6.2 As far as the limitation is concerned, we find that since the appellant is a State Government Undertaking it cannot be inferred that they had an intention to evade payment of tax. This Tribunal in the case of M/s Chandigarh Transport Corporation cited (supra) has held in paras 8 and 9 as under:- "8. We find that learned Counsel for the appellants has taken a preliminary objectio....
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....: a) Fraud; or b) Collusion; or c) Wilful misstatement; or d) Suppression of facts; or e) Violation of the Act or Rules with an intent to evade payment. 13. There is no other ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked. Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression with an intent. In other words, without an intent being established, extended period of limitation cannot be invoked. In Pushpam pharmaceuticals company vs Collector of Central Excise Mumbai5, the Supreme Court examined Section 11A of the Central Excise Act, 1944 which was worded similar to Section 73 of the Finance Act, 1994 and held as follows: " 4. Section 11A empowers the Department to re open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exerci....