TaxTMI 
TaxTMI 
2025 (12) TMI 1248
X X X X Extracts X X X X
X X X X Extracts X X X X
....deavour' disregarding the onus resting with tax authorities to stipulate the activity which, in conformity with section 65B(44) of Finance Act, 1994, rendered noticee liable to be taxed under section 66B of Customs Act, 1962. 2. It would appear from the records that the appellant, in addition to medical practice and authoring of works in homeopathy, had offered training programmes owing to which registration as 'person liable to tax' had been taken under Service Tax Rules, 1994 and returns regularly filed thereupon including, for 2014-15, declaring provision of services valued at Rs. 21,10,013 below the taxable threshold. On the premise that income of Rs. 2,47,15,889 reported for the same year in returns filed under Income-tax Act, 1961 represented untaxed consideration of Rs. 2,26,05,876 for services rendered, appellant herein was issued with show cause notice dated 18th October 2019 seeking to fasten liability of Rs. 27,94,086 and other detriments. According to Learned Chartered Accountant appearing for the appellant they had responded with details of income and statement of reconciliation, in which the difference, attributable to medical consultation fee of Rs. 1,46,23,605, c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....994 applied to the value determined in accordance with section 67 of Finance Act, 1994, is subject to exception for not being service in section 65B(44) of Finance Act, 1994, exclusion by enumeration in section 66D of Finance Act, 1994 and exemption in notifications under section 83 of Finance Act, 1994. While it could be posited that exclusion and exception could be allowed only upon evidence of eligibility furnished by assessee, it is not in doubt that invoking of section 73 of Finance Act, 1994 is legal and proper only upon income being established as consideration for '....any activity carried out by a person for another...' to constitute 'service' as set out in section 65B (44) of Finance Act, 1994. Impliedly, every receipt is not deemed to be 'consideration for service' to be remitted by assessee as excluded or exempted from tax and income for the purpose of levy under another statute is not consideration either. The authority invoking section 73 of Finance Act, 1994 must, by investigation including response from assessee, must arrive at reasonable certainty of liability on grounds set out in the notice before determination of recoverable tax even if by failure on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horities could not have assume the jurisdiction to issue the show cause notice on the basis of the data provided by the Income Tax Department in Form-26AS and thereafter failed to consider the details provided by the petitioner in reply to the show cause notice. 17. It is also pertinent to note that no justification is given in the impugned show cause notice as well as the order-in-original for assumption of jurisdiction by invoking extended period of 5 years under the priviso to subsection-1 of section 73 of the Finance Act, 1994. 18. In view of the foregoing reasons, the impugned show cause notice is not tenable as the same is issued without jurisdiction and consequently the order-in-original also would not survive....' while the Tribunal, in Commissioner of CGST and Central Excise, Mumbai East v. Modern Road Makers Pvt Ltd [(2025) 26 Centax 193 (Tri.-Bom)], held that '5. We have carefully gone through the record of the case and submissions made. Right at the outset we have examined the show cause notice. The show cause notice dated 16.04.2019 states that the same is enclosed with two annexures. Annexure-I is work sheet. The work sheet states the tur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nue to know the transactions between other parties & appellant from form 26AS. Revenue could have investigated into the nature of such transactions & should have established that the said transactions were in respect of provision of said service. Then alone the charges of short payment of Service Tax would have sustained. We find that Final Order of this Tribunal in the case of Sharma Fabricators Pvt. Ltd. (supra) is squarely applicable in the present case. We, therefore, hold that Revenue did not discharge its burden to prove short payment of service tax. We also hold that the said show cause notice dated 05.10.2016 is not sustainable." (b) In the case of, Sharma Fabricators & Erectors Pvt. Ltd. [2017 (7) TMI 168 - CESTAT ALLAHABAD], it was held as follows:- "Surprisingly the draft audit report was the relied upon document. It may be worth mentioning here that the purpose of audit report is to point out any discrepancy to the notice for examination by the executive and it is the duty of executive to examine the records and examine the objection raised with reference to the records and facts of the case and take a view whether there is a sustainable case for issue....