TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1023
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....d to the extent that the confirmed amount of Service tax, interest u/s 75 of the Act and penalty u/s 78 of the Act is revised to Rs.65,548/- along with applicable interest u/s 75 of the Act along with equal penalty u/s 78 of the Act." 2.1 Appellant was registered with the Service Tax Department for providing taxable service as defined under Section 65B of the Finance Act, 1994. 2.2 On scrutiny of ITR/TDS returns of the appellant, it was observed that appellant had received a sum of Rs.24,25,537/- & Rs.23,95,000/- during the Financial Year 2014-15 & 2015-16. On comprising the same with the ST-3 returns differences as detailed in table below was occurred:- Financial Year Receipt as per ITR/TDS Gross receipts as per ST-3 differential amount 2014-15 2,77,857/- 1,77,500/- 22,48,037/- 2015-16 3,31,356/- 1,85,300/- 22,85,210/- 2.3 Thus, by suppressing the value of gross receipts in the ST3 returns, appellant did not discharge the service tax liability of Rs.2,77,857/- during the Financial Year 2015-16 and Rs.3,31,356/- for the F.Y. 2015-16. 2.4 Show cause notice dated 30.12.2020 was issued to the appellant, asking them to show cause as to wh....
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....on 13.04.2021 and against this fact the instant demand was issued on 03.01.2021. In this way the demand for second half of 2015-16 has been issued with the statutory time period of 05 years. 9.9 I also observe that the appellant has raised the issue that the extended period of demand is not liable to be invoked in the instant case. In this regard I find that the appellant was providing the taxable services and was filing their ST-3 returns regularly and was declaring their value of services in the same. However, when such declared value of services were compared with the value of services as declared in their ITRs filed for the relevant time, it was found that the appellant has declared a lesser value in their ST-3 returns. In such way I find that the appellant has mis-declared their value of services in the ST-3 return and accordingly, I find that the extended period of demand has correctly been invoked in this case. 10.1 Now, coming to the merit of the case I find that the appellant has not disputed the levy of Service tax on the considerations received by them during the second half of 2015-16 and the only averment extended by the appellant is that they have pa....
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....come Tax Return and that the demand is raised without examination of the books of accounts. The Revenue should have established that the said transactions were in respect of provision of services. Further, I find from the Order-in-Appeal No. HYD-SVTAXHYC-APP1-156-23-24 dated 11.01.2024, the Authorities knowing well about the activities of the Appellant since 2012, Appellant filed returns for the year 2012-13 onwards. In the circumstances, there is no reason to invoke extended period of limitation in the absence of any ingredient with an intention to evade payment of service tax. Thus, show cause notice issued under the provisions of Section 73(1) of Finance Act, 1994 is unsustainable in law. Accordingly, the notice is hit by bar of limitation. 7. Further, I find that this Tribunal and other Co-ordinate Benches, in catena of decisions continuously hold that solely on the basis of Income Tax Returns, demand cannot be sustainable. Therefore, it is essential to establish that the value on which such service tax is calculated is the value under Section 67 and the same is derived from the consideration received by the appellant out of the activity which has to satisfy definition....
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....rder No.A/30078-30079/2024 dated 26.02.2024 have held as follows:- "7. On going through the records of the case, it is clear that the cases are made on the basis of third party data i.e., amounts reflected in Income Tax Returns and in Form 26AS. Revenue takes the stand that in the Negative List regime, Department is not obliged to prove the provision of a particular service to demand service tax and further, the Appellants could not explain that the difference satisfactorily. I find that this is not the correct approach; exigibility to service tax depends on the service provider, service rendered, service recipient and the consideration thereof. Unless these four elements have been connected logically, demand of service tax cannot be confirmed merely on the basis of figures reflected in other statutory records. Be it pre or post-Negative List regime, the Department is under obligation to prove that the Appellants have rendered such and such service and to such and such persons and that the consideration was received towards the rendering of such service. Without doing the same, demand merely on the basis of figures does not survive. 8. I find that Tribunal has bee....
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....led by the appellant. So far as the issue about differences in the figures reflected in ST-3 Returns and in form 26AS is concerned it has been settled by way of various decisions of the Tribunal that the Revenue cannot raise the demand on the basis of merely differences without establishing that the entire amount received by the appellant as reflected in form 26AS is consideration for services provided because it is also not proper to presume that the entire differential amount was on account of consideration for providing services without verifying it. It is the specific case of the appellant that the amount shown in Form 26AS by the service recipient have not been received by the appellant. I also agree with the submission of learned Counsel that the burden to prove the allegations is upon the department that the appellants have received the extra payment on which the TDS of Rs.3,74,121/-(since form 26AS reflects TDS) has been deducted by the service recipient. My aforesaid view is also supported by the decision of the Tribunal in the matter of Qwest Engineering Consultant Pvt. Ltd. v/s Commissioner CGST, Central Ex. Allahabad; 2022 (58) GSTL-345 (Tri-All.)in which the co-ordinat....