TaxTMI 
TaxTMI 
2025 (9) TMI 403
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....Cause Notice dated 09.11.2020 was issued to the Appellant alleging that they have evaded Service Tax of Rs.1,02,26,774 under Works Contract Service for the Financial Year 2015-16. After due process, the said Show cause Notice was adjudicated and the demands raised in the Notice were confirmed. On appeal, the Ld. Commissioner (Appeals) has upheld the demands of service tax, along with interest and penalty, confirmed in the Order-in-Original. Aggrieved against the confirmation of the demands, the appellant has filed this appeal. 3. The appellant submits that no Service tax demand can be confirmed solely relying the Income Tax data without adducing corroborative evidence; that it is evident from the paragraphs 1.3, 1.8, 4.2.1, 4.2.2 of the Order-in-Original that the whole of the demand has been raised and confirmed on the basis of the date received from the Income Tax Department. In this regard, the appellant relied on the decision in the case of M/s. Rishu Enterprise vs Commissioner of C.G.S.T. & Excise, Dibrugarh, in Final Order No. 75177 of 2024 dated 08.02.2024 in Service Tax Appeal No. 75509 of 2022 [CESTAT, Kolkata]. They also submit that the same view has been held by the Tr....
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....15 to September 2015 is beyond the period of 5 years; in this case, the SCN was issued on 09.11.2020 and the period covered is April 2015 to September 2015 while the relevant date of filing the Return for this period was 6th October 2015. Hence, it is submitted that the notice issued for this period is beyond 5 years and hence the demands are barred by extended period of limitation as provided under section 73(1) of the Finance Act, 1994. The appellant points out that "Relevant date" in the case is the due date of payment of tax. Regarding, the demand raised in the notice for the period from October 2015 to March, 2016, the appellant submits that the notice was issued beyond the 30 months of normal period of limitation available for issue of the Notice. In this connection, the appellant also submits that the impugned SCN, which was affirmed in the Order-In Original, has been raised on the basis of Income Tax (CBDT) data for the Financial Year 2015-16, which information was available with the Department at all material times after filing of the IT Return; that such data was accessible to the Department and was made available by the CBDT to CBEC, as in the case. Thus, the appellant c....
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....ribunal, Allahabad in the case of M/s. Quest Engineers & Consultant Pvt. Ltd. v. Commissioner of C.G.S.T. & C.Ex., Allahabad [2022 (58) G.S.T.L. 345 (Tri. - All.)], wherein it has been held as under: - "12. .... ....We further find that Form No. 26AS is not a statutory document for determining the taxable turnover under the Service Tax provisions. We find that Form No. 26AS is maintained on cash/ receipt basis by the Income Tax Department for the purpose of tax deducted at source, etc. being the relevant data for Income Tax. Whereas under the Service Tax provisions, the service tax is chargeable on mercantile basis (accrual basis) on the service provided whether the value of such service is received or not. Thus, we find that the whole basis of show cause notice is incorrect and/or misconceived." 6.3. We also place our reliance on the decision rendered in the case of M/s. GopiChenna v. Commissioner of Central Tax, Medchal - GST [Final Order No. A/30078-30079/2024 dated 26.02.2024 in Service Tax Appeal No. 30412 of 2023 & anr. - CESTAT, Hyderabad], wherein the Tribunal, Hyderabad has observed as follows: - "7. On going through the records of the case, i....
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.... provisions of Income-tax Act, 1961 is an Annual Consolidated tax statement. Income-tax and service tax are two different/separate and independent Acts and their provisions operating in two different fields. Therefore by relying the 26AS/TDS Statement under the Service Tax Act, demand of service tax cannot be made. We also find the support from the decision of Ved Security v. CCE, Ranchi-III - 2019 (6) TMI 383 CESTAT, Kolkata wherein it was held that the value of taxable services cannot be arrived at merely on the basis of the TDS statements filed by the clients inasmuch as even if the payments are not made by the client, the expenditure are booked based on which the Form 26AS is filed, which cannot be considered as value of taxable services for the purpose of demand of Service tax." 6.6. Thus, by relying on the decisions cited supra, we hold that service tax demand cannot be raised and confirmed merely on the basis of the data available in the Income Tax Returns filed by the appellant, in the absence of any corroborative evidence. 7. In this case, we also find that the Notice has been issued to the appellant by treating the entire value as per the CBDT data as the taxable va....
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....n made only for an amount of Rs 36,34,958/-, which, as submitted by the appellant, relates to payment received from M/s. Akash Construction for the work contract service rendered by them. Therefore, we hold that the gross taxable value of the works contract service rendered by them for the Financial Year 2015-16 is only Rs 36,34,958/-. 7.5. Regarding the service tax liability on this amount of Rs.36,34,958/-, we agree with the appellant's claim that they have rendered an Original Work and hence, as per Rule 2A of Service Tax (Determination of Value) Rules, 2006, they are eligible for the abatement and liable to pay service tax only on 40 % of the gross value. Further, as per Notification No. 30/2012-ST dated 20.06.2012, they are liable to pay service tax only on 50% of the value, under Reverse Charge. Thus, the Net Taxable Value on which service tax liable to be paid by the appellant during the Financial Year 2015-16 works out as Rs.7,26,992/-. It is observed that the appellant has raised this claim before the lower authorities, but no findings contrary to the said claim have been recorded either in the Order-in-Original or in the impugned Order-in-Appeal. A perusal of the docum....