TaxTMI 
TaxTMI 
2025 (10) TMI 1263
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....mation Systems Private Limited, 128, Block- C, Sahani Tower, Rajinder Nagar, Sahibabad, Ghaziabad - 201005." 1.2 By the Order-in-Original No.144/AC/STAX/CGST/DVI/GZB/202/--3 dated 15.12.2022, Original Authority has held as follows:- "ORDER (i) I confirm the demand of Service Tax amounting to Rs. 1,72,307/-[Rupees One Lakh Seventy Two Thousand Three Hundred Seven Only including Ceses under proviso to Section 73(1) of the Finance Act. 1991 read with section 174 of the Central Goods & Services Tax Act 2017 for the period 2010-17. (ii) I order for recovery of interest at appropriate rate from the party on the confirmed demand of Service Tax as mentioned at St. No (i) above under Section 75 of the Finance Act. 1994, read with Section 174 of the CGST Act. 2017. (iii) I impose penalty of Rs. 1,72,307/- Rupees One Lakh Seventy Two Thousand Three Hundred Seven Only) under Section 78 of the Finance Act, 1994 read with Section 174 of the CGST Act, 2017. (iv) I drop late fee under Section 7011) of Finance Act. 1994 read with Section 174 of the CGST Act. 2017. (v) I also impose a Penalty of Rs.10,000/- (Rs. Ten Thousand Only) under Sectio....
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.... 2.7 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been disposed of as per the impugned order referred in para-1 above. 2.8 Aggrieved appellant have filed this appeal. 3.1 Counsel for the appellant through a letter has requested for adjournment. I observe that the issue involved in the present case is in very narrow compass, accordingly, I proceed to consider the appeal after hearing Shri Santosh Kumar Authorized Representative for the revenue, who reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 I find that the issue can be decided on the ground of limitation itself. Impugned order records in this aspect as follows:- "5.4 I find that the genesis of the subject case is vested in the third party data received from the Income Tax Department wherefrom it was observed that during the fiscal year 2016-17 the appellant had declared an amount of Rs.64,81,781/- against the services provided by them in their Income Tax Return while the value of services in their corresponding ST-3 returns was Rs.53,33,066/-. A....
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....) + Rs. 64,81,781/- (sale of services)]. In this regard, I find it pertinent to refer to "Guidance Note On The Revised Schedule VI To The Companies Act 1956" wherein at "Serial No. 9-Part-IIStatement of Profit & Loss" inter alia the following has been specified. 9. Part II Statement of Profit and Loss As per the Guidance Note 'Terms Used in Financial Statements', the phrase 'Profit and Loss statement' is defined as "the Financial Statement which presents the revenues and expenses of an enterprise for an accounting period and shows the excess of revenues over expenses (or vice versa) It is also known as profit and loss account." 9.1 Revenue from operations: The aggregate of Revenue from operations needs to be disclosed on the face of the Statement of Profit and Loss as per Revised Schedule VI 9.1.1 Note 2(A) to General Instructions for the Preparation of Statement of Profit and Loss require that in respect of a company other than a finance company, Revenue from operations is to be separately disclosed in the notes, showing revenue from: (a) Sale of products (b) Sale of services (c) Other operating revenues (d) Less: Excise duty 9.1....
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....#39;Guidance Note On The Revised Schedule VI To The Companies Act 1956', supra, it is established on explicit terms that the said consideration of Rs. 64,81,781/- was exclusively in respect of sale of services. As regarding the contention of the appellant regarding adjustment of incentive/Cash Discount of Rs.29,21,849/received from their supplier M/s Siemens, I find that the said discount was admittedly received by the appellant from Seimens in respect of purchase of goods from Seimens and the same was accordingly to be adjusted in the gross revenue from sale of goods as the same was not connected in any manner with the services rendered by the appellant. This being the fact, and with the appellant having not reported 'Other operating revenue' in their P&L Account and having reported revenue from sales of goods separately as per legal norms, it stands established that Rs. 64,81,781/-was consideration exclusively in respect of sale of goods and thereon the due amount of service tax was liable to be paid by the appellant. As regarding the reconciliation chart submitted by the appellant, the same is incomprehensible in as much as:: (i) the discount received from the suppli....
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....of the Finance Act, 1994 are present in a case, the discretion to quantify the amount of penalty ends. Accordingly, equivalent penalty under Section 78 has rightly been imposed upon the appellant. Further, as the appellant had failed to correctly determine and self-assess their service tax liability, declare the same to the department and had also failed to discharge the same in the manner prescribed for the same so they had also rendered themselves liable for penal action in terms of Section 77(1) of the Act. As regarding invocation of extended period of time limitation and imposition of penalty upon the appellant under the provisions of Section 78 of the Finance Act, 1994, I find that the foregoing findings explicitly establishes the same, however, corroboratedly reliance is placed upon the pronouncement made in the following cases, the ratio thereof being squarely applicable to the subject case of service tax." 4.3 Evidently, it is clear that the entire case has been made out against the appellant on the basis of differences between the receipts towards services as shown in the ITR return and the ST3 return of the appellant. Extended period has been invoked for making this de....
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....hat are taxable under the head service tax than total of service tax return and comes to Rs. 53,33,066.00 and ST-3 return also submitted for the same. 2. That we have paid the service tax @ 14% +0.5% as applicable for the period. 3. That service tax return for both the period ie. April to September 2016 and October to March 2017 is duly filled we within time prescribed under the act. The photocopy of ST-3 return copy is being enclosed with this letter. 4. That there is no short falls of service tax amount and no late payment of service tax return is applicable on us. Please find the all the above papers/ submission is order along-with annexure in order kindly look into the matter on parity basis withdraw you "Demand-Cum Show Cause Notice" at the earliest and oblige." 4.4 From perusal of the above letter it is clear that appellant has given reasons for determining the value of taxable services i.e. Rs.53,33,066/- whereas in ITR the receipts towards services shown as Rs.64,81,781/-. The submissions made by the appellant may be acceptable or not acceptable on merits to the revenue officers but on perusal of the above letter, it is clearly establi....
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.... of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that "the appellants had not brought anything on record" to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India v. Ashok Kumar & Ors. - (2005) 8 SCC 760 that "it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easil....