TaxTMI 
TaxTMI 
2026 (4) TMI 1077
X X X X Extracts X X X X
X X X X Extracts X X X X
....ered in the name of M/s Urmila Enterprises, providing services of "construction service in respect of commercial or industrial building and civil structure". 2.2 With effect from 31.03.2008, the said Firm merged with the appellant herein, however, a fresh registration was taken only on 14.09.2011, though the firm M/s. Urmila Enterprises had its own registration and the same continued until the fresh registration was taken in 2011, under the category of 'Works Contract Service'. 2.3 Audit was conducted against M/s Urmila Enterprises and during the pendency of the audit, the appellant applied under VCES Scheme. While applying for VCES Scheme 2013, an amount of Rs.50,47,000/- was declared to be the "service tax dues". 2.4 The said VCES application was rejected on the ground that since the audit is being carried out, the application is not maintainable. 2.5 On 19.12.2014, the audit, which was going on, culminated into a Show Cause Notice dated 19.12.2014, raising an amount of Rs.3,98,55,319/- and appropriation of amount already deposited. The aforesaid Show Cause Notice was for the period 01.10.2007 to 31.12.2012. 2.6 For the period 01.01.2013 to 31.03.2014, a Show Cause....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out the pending case in VCES calculation chart so not intentional suppression of facts. f) Immunity from Penalty under section 78, 77(2), 77(1)(a), 77(1)(c)(i), 77(1)(c)(ii), 77(1)(c)(iii) and 78A. As per Section 73(1) as inserted by Finance Act, 2012, if any service tax is not levied or not paid or short levied or erroneously refunded, Central Excise Officer shall issue a show cause notice for demand within 18 months from relevant date. As per Section 73(6)(i)(b), in case where no return was filed, Relevant date is the last date on which the return should have been filed under Service Tax Rules. Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- a) Fraud; or b) Collusion; or c) Wilful mis-statement; or d) Suppression of facts; or e) Contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax, by the person, Chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "eighteen months", the words "five ye....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t a Service Tax Return can only be revised within three months from the date of filing the original return, after which revision is not permitted. 3.4 Accordingly, the appellant was unable to file revised returns beyond the prescribed time limit due to system restrictions. Therefore, the non-reflection of certain service tax payments in the ST-3 returns is not due to any default in tax payment, but is merely a procedural lapse in return compliance. 3.5 The appellant voluntarily came forward to discharge service tax liability for the period from July 2009 to December 2012; however, the order has been adjudicated for the period from October 2007 to March 2012. As a result, several challans have not been taken into account for appropriation against the service tax liability. Accordingly, the same should be duly appropriated. 3.6 The details of works contract entered by the appellant are tabulated as under: For the period January 2013 to March 2014 S. No. PARTY NAME NATURE OF WORK SERVICE TAX a) M/s Kirloskar Brothers Limited Appellant has done the civil work for Thermal Power Project- Water System Package at Koderma PAID b) M/s Hindustan Steel....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... industry or any other business or profession EXEMPTED n) Construction of Swimming Pool at VisvaBharati, Shantiniketan, West Bengal. Meant for predominantly for use other than for commerce, industry or any other business or profession EXEMPTED For the period April 2014 to March 2015 S.N. PARTY NAME NATURE OF WORK SERVICE TAX a) M/s Kirloskar Brothers Limited Appellant has done the civil work for Thermal Power Project- Water System Package at Koderma PAID b) M/s Hindustan Steel Works Construction Ltd construction of school building at JNV Purulia. The structure is meant predominantly for educational use. EXEMPTED c) Jharkhand State Agricultural Board, Hazaribagh Construction of 6000 MT capacity storage godown meant for predominantly for use other than for commerce, industry or any other business or profession. EXEMPTED d) M/s Damodar Valley Corporation Urgent constructionn of Pipe Rack Pedestals for Cross Country Pipeline at Chainage 5+040 of KTPS PVC, Koderma PAID e) M/s National Buildings Construction Corporation Ltd., Ranchi Construction of Approach Road to CISF Complex (From 4 Lane to near CISF O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on EXEMPTED q) Construction of Swimming Pool at VisvaBharati, Shantiniketan, West Bengal. Meant for predominantly for use other than for commerce, industry or any other business or profession. EXEMPTED 4. In the above set of facts, the ld. Counsel for the appellants has raised the following issues for consideration : (i) Whether the proceedings for the period 2007-2012, had become time barred, since the Show Cause Notice is dated 19.12.2014 ? (ii) Whether Form 26AS and the Profit & Loss Account can be the basis for raising demand and continuing the proceedings ? (iii) Whether the exemption which is available to the Appellant could be denied, only because the Government Department at the adjudication proceeding did not certify the same ? (iv) Whether the payment of service tax made under the head 'renting of immovable property, as also, 'goods transport agency' (on reverse charge) could be ignored, when the payment challans were on record ? (v) Whether once the principal contractor has made the payment of service tax in relation to a particular contract, the sub-contractor can still be asked for payment of service tax ? ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rent from the provisions under Income Tax Act providing for deduction of TDS. Hence, the method adopted by the Assessing Officer of taking the differential amount by invoking the provisions of best judgment assessment is not in accordance with law. The provisions of best judgment assessment even for the valuation of service are attracted only if the concerned person (a) fails to furnish the return or (b) if the return has been filed in that case, he fails to assess the tax in accordance with law. Therefore one needs to consider factually whether the given ingredients are satisfied or not to permit the invocation of Section 73. In support of his contention, he relies on the following decisions : (i) M/S LUIT DEVELOPERS PRIVATE LIMITED VS COMMISSIONER OF CGST & CENTRAL EXCISE, DIBRUGARH Final Order No.75120/2022 dated 23.02.2022 (Service Tax Appeal No.75792/2021) ; (ii) KUSH CONSTRUCTIONS V. CGST NACIN 2019 (24) G.S.T.L. 606 (Tri. - All.), Therefore, it is contended that the impugned order issued without categorically identifying the nature of taxable service involved, may not be valid on the aforesaid grounds. 4.3 As regards Issue No.(iii), he submits that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Appellant excluded such amounts from returns but paid service tax promptly upon receipt of payments through challans. As returns can only be revised within three months, later corrections were barred by system restrictions. Thus, the non-reflection of certain payments in ST-3 returns was a procedural lapse, not a default in tax payment, since the tax liability were discharged through challans. Hence, the payment challans which were on record could not have been ignored, rather the same ought to have been set off from the liability determined by the Authority. 4.5 As regards Issue No.(v), he submits that in respect of liability of tax payment by the Appellant where their main contractors have already paid the tax on their behalf, this remained a vexed issue for the assesses for over the period of time. It would be pertinent to examine it in light of some orders of the Tribunal pronounced from time to time. In support of his contention, he relies on the following case laws : (i) Vijay Sharma & Co. Vs. Commissioner of Central Excise Chandigarh 2010 (20) STR 309 (TRI-LB) ; (ii) Loan Star Engineers Vs. Commissioner of Central Excise Panchkula 2017 (47) STR 133 (Tri ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....how-cause notice dated 19.12.2014, the demand has been raised by invoking extended period of limitation for the period 01.10.2007 to 31.12.2012. Admittedly, a part of the demand is beyond the period of five years, the same is not sustainable. Moreover, the appellant was paying service tax on the services, which were liable to be taxed. The appellant has also taken a ground that the extended period of limitation is not invokable and they contended that it cannot be alleged that they have suppressed the facts. The said issue is to be examined by the adjudicating authority on the basis of the documents supplied by the appellants. 8. Further, the demand of service tax has been raised against the appellant on the basis of Form 26AS as best judgement assessment as the appellant has failed to furnish the ST-3 Returns and could not pay the service tax properly. 9. In fact, the claim of the appellant is that they were providing taxable services and as well as exempted services during the impugned period and it is the claim of the appellant that on taxable services, they were paying service tax and that services which were exempted, the appellant is not paying service tax. Moreover, be....