TaxTMI 
TaxTMI 
2026 (2) TMI 333
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....for verification. During the course of verification of the documents furnished by the appellant, it was found that the appellant had allegedly short paid Service Tax during the period from 1st April, 2016 to 30th September 2017. The Department alleged that the appellant was providing certain taxable services on which Service Tax was not correctly discharged. 2.1. Accordingly, a Show Cause Notice dated 20.01.2021 was issued to the appellant demanding Service Tax (including cesses) of Rs.78,95,978.00/- for the period from 01.04.2016 to 30.05.2017. As the appellant has already paid Service Tax of Rs.58,56,266/- for the said period, under self-assessment, the said notice proposed to recover the balance amount of Service Tax of Rs.20,39,713/- (including cesses) for providing services of Renting of Immovable Property, other Services (Forgoing Tenancy Right) and Construction of Residential Complex Service. 2.2. After due process, the above Show Cause Notice was adjudicated and vide the Order-in-Original No. 50/AC/SIL/2023-24 dated 15.09.2023, the demand of Service Tax amounting to Rs.20.39,713/- as raised in the notice has been confirmed, along with interest and equal amount of tax ....
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...., 1994; that the appellant was also directed to pay applicable interest on the said amount. The appellant contends that as they were not liable to pay the Service Tax of Rs.20,39,712/-, the demand of interest thereon and imposition of penalty on the said demand is legally not sustainable. 3.2. Furthermore, the appellant submits that they have duly discharged self-assessed Service Tax due amounting to Rs.58,56,266/- during the relevant period; however, the impugned adjudication order proceeded to quantify an alleged short-paid service tax of Rs.20,39,712/- without first determining the taxable value in accordance with Section 67 of the Finance Act 1994, rendering the quantification patently erroneous. It is the appellant's stand that it is well settled in law that determination of taxable value is a sine qua non for confirming any demand, and in the absence thereof, the demand is unsustainable in law. 3.3. It is also contended by the appellant that the demand of Rs.20,39,712/- has been erroneously confirmed merely on the ground that the said amount was paid by the appellant, while completely ignoring the fact that the payment was made under compulsion and coercive pressure by ....
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.... has artificially created the short payment of Service Tax of Rs.20,39,712/-, which the appellant was compelled to deposit during investigation; since the foundational demand itself is unsustainable in law, it is the appellant's plea that the deposit of Rs.20,39,712/- is purely erroneous and liable to be refunded in full, along with applicable interest, as a consequential relief. 3.7. The appellant has also mentioned that the impugned demand has been raised solely on the basis of the appellant's Income Tax records, which were duly maintained, disclosed to Statutory Authorities and available in the public domain. The appellant's submission on this score is that when the entire basis of the demand is drawn from declared and audited Income Tax data, there can be no allegation of suppression, wilful mis-statement or intent to evade tax; that it is a settled position of law that extended period of limitation cannot be invoked where the facts are within the knowledge of the Department or derived from statutory records. Accordingly, the appellant challenges the invocation of the extended period under Section 73(4) of the Finance Act, 1994, as being wholly unjustified and unsustainable.....
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....e of M/s. Rishu Enterprise v. Commissioner of C.G.S.T. & C.Ex., Dibrugarh [Service Tax Appeal No.75509 of 2022 -CESTAT, Kolkata] wherein it has been categorically held that a demand based merely on Form 26AS is unsustainable. The relevant part of the said decision is reproduced below for the sake of ready reference: "8. In view of the judicial pronouncement of this Tribunal, we hold that merely on the basis of Form 26AS issued by the Income Tax Department, the demand of Service Tax is not sustainable against the appellant. ... 11. In view of this, we hold that the impugned demand is not sustainable against the appellant on the basis of the details provided by the Income Tax Department in Form 26AS and the extended period of limitation is not invokable." 6.1. Similar views have also been taken in the cases of Commissioner of C.Ex., Trichirapalli v. Ravishankar Industries Ltd. [2002 (150) ELT 1317 (Tri. - Chennai)] and Shabroc Chemicals v. Commissioner of C.Ex., Kanpur [2002 (149) ELT 1020 (Tri. - Delhi)]. 6.2. Thus, by relying on the ratio of the decisions cited supra, we hold that the demand confirmed in the impugned order solely on the basis of the....
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....actions. It is a settled position of law that a vague and unsubstantiated demand violates principles of natural justice. The Hon'ble Supreme Court in Commissioner of C.Ex., Nagpur v. Ballarpur Industries Ltd. [2007 (215) E.L.T. 489 (S.C.)] held that demands raised without proper calculation and supporting evidence are not sustainable. Therefore, we are of the considered view that the demand raised and confirmed without determining the taxable value is not sustainable. Accordingly, we hold that the demand of Rs.20,39,712/- confirmed over and above the self-assessed service tax amounting to Rs.58,56,266/- paid by the appellant during the relevant period, is not sustainable and hence we set aside the same. 8. Regarding the contentions of the appellant against invocation of extended period of limitation to confirm the demand, we take note of the fact that the impugned demand has been raised solely on the basis of the appellant's Income Tax records, which were duly maintained, disclosed to Statutory Authorities and available in the public domain. When the entire basis of the demand is drawn from declared and audited Income Tax data, there can be no allegation of suppression, wilful m....
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.... (i) The demand of Service Tax of Rs.20,39,712/-, confirmed in the impugned order, over and above the self-assessed Service Tax amounting to Rs.58,56,266/- paid by the appellant during the relevant period, is set aside. The demand of interest thereon and penalty imposed under Section 78 of the Finance Act, 1994 in this regard are also set aside. (ii) The penalty imposed under Section 77 of the Finance Act, 1994 for non-filing of returns is upheld. (iii) The appellant would be eligible for the refund of the excess paid Service Tax of Rs.20,39,712/-, along with applicable interest. However, for claiming the refund, the appellant must follow the procedure prescribed in accordance with law. 12. The appeal filed by the appellant is disposed of on the above terms. (Operative part of the order was pronounced in open court) ============= Document 1 Renting Immovable Property Service of Other Services (Forgoing Tenacy Right) Construction of Residential Complex Service (provided to Flat Buyers Construction of Residential Complex Serving (Provided Land Owners Mo nth against receiving SB KK vice C TEx 2 Ser SB vic xxU e Tax Righ....