TaxTMI 
TaxTMI 
2026 (7) TMI 1451
X X X X Extracts X X X X
X X X X Extracts X X X X
.... penalty in the case." 2.1 Appellant having PAN- ANHPK1807B was not registered with the department and was not filing any return as required for paying service tax. 2.2 On the basis of the information received for the Financial Year 2015-16 from Income Tax Department it transpires that appellant had received amounts towards provisions of services and have not paid any service tax in respect of the services provided. 2.3 Inquiries/investigations were started against the appellant and the jurisdictional authorities vide letter dated 18.06.2020, 10.08.2020 and e-mail send on 18.06.2020 and 22.06.2020 requested for the financial documents such as Form-26 AS, Balance Sheet, work order and ITR for the year 2015-16 from the appellant. 2.4 Appellant vide letter dated 03.09.2020 submitted some of the documents and informed as follows:- "I am a contractor providing services Exemptions to PWD (UP Govt. department) which is evident from my 26AS of Income Tax department and as per Mega Revenue) 25/2012-Service Tax dated 17.03.2012 (Updated20/06/2012), Ministry of Finance (Department of Government of India "Services provided to the Government, a local authority or a Governme....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... iv. Penalty should not be imposed upon them under Section 77(1)(a) of the Finance Act, 1994 read with Section 174 of the Central Goods and Services Tax Act, 2017 for their failure to take registration as per provisions of Sectioin-69 of the Act. v. Penalty should not be imposed upon them under Section 77(2) of the Finance Act, 1994 read with Section 174 of the Central Goods and Services Tax Act, 2017 for their failure to file required ST-3 returns for F. Y. 2015-16 as laid down under Section-70 of the Act." 2.9 The said show cause notice was adjudicated as per the Order-in-Original No.418/ST/AC/D-II/Agra/2022-23 dated 21.02.2023. 2.10 Aggrieved appellant have filed appeal before Commissioner (Appeals) who vide the Order-in-Appeal No.246-ST/APPL/LKO/2024 dated 04.04.2024 remanded the matter back to the jurisdictional Assistant Commissioner by observing as follows:- "5.1:- I have carefully gone through the case records. I find that the present case involves examination of eligibility of the Appellant for the benefit of entry No. 12(A) as provided under Notification No. 25/2012-Service Tax dated 20th June, 2012. 5.2:- I note that in order to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of service tax. However, an option is being given to the Noticee under (1)(ii) of Section 78 of the Finance Act, 1994 that if the Service Tax of Rs.3,72,213/- along with applicable interest is deposited within thirty of communication of this order, the amount of penalty liable to be paid by the party shall be twenty five percent of such service tax so determined in the order, Provided that the benefit of reduced penalty under the second proviso shall be available only if the amount of such reduced penalty is also paid by the party within such period, (iv) I impose the penalty of Rs.1,000/-(Rupees One Thousand Only) upon the party under Section 77(1)(a) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017 for not obtaining Service Tax Registration. (v) I impose the penalty of Rs.10.000/-(Rupees Ten Thousands Only) upon the party under Section 77(2) of the Finance Act, 1994 read with Section 174 of the CGST Act, 2017 for not filing their statutory ST-3 during the period April. 2015 to Sept. 2015 and Oct. 15 to March, 2016." 2.12 Aggrieved appellant have filed appeal before Commissioner (Appeals), which has been disposed as per the impugned order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3 I have carefully gone through the submissions of the appellant & the grounds of appeal, order passed by Adjudicating authority, case records and find that in the present case, the Adjudicating authority has passed a well reasoned order by applying his mind and after considering the directions issued vide the OIA dated 04.04.2024. Regarding services provided to the PWD i.e.. Government authority; the Adjudicating authority has ascertained the each and every activity performed by the appellant and dropped the portion of demand which was covered under the purview of Notfn. No. 25/2012-ST dated 20.06. 2012. I am discussing the grounds of appeal one by one in the following manner; (i) As alleged in the Demand SCN dated 28.12.2020, it was Income tax department who reported the figures filed in Income Tax return filed by the appellant for the year 201516 and the entire figures reported were considered as sales of services by the appellant and the impugned Demand SCN was issued. If these figures were not reported by the income tax the department could not have get it from any other source. It was the sole responsibility of the appellant to get themselves registered with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance sheet. which is a public document, hence in view of the settled position of the law of various higher judicial authorities, demand of service tax, making extended period of time of limitation, is not sustainable against the Noticee, when all such transaction are reflected in their books of account and there is no malafide intention to evade the service tax on the part of the Noticee. (ix). It is further Division, submitted that the Noticee received an amount of Rs. 4,90,886/- from the of PWD, Provincial Division Etah for supply of stone ballast. That three works order for supply of stone ballast bearing No. 2711/21A dated 24/08/2015 for Rs. 97,560/- and bearing No.3208/21A dated 24/08/2015 for Rs. 97600/- and bearing No.532/21-A -Eng.1 dated 04/09/15 for Rs. 97,650/- against which the consideration to the tune of Rs. 97,560/- Rs.97,600/- and Rs.97,650/- as shown at SubSerial No. 3,4 & 5 of S.No. 4 of their Form 26AS for the relevant period, totaling to Rs. 2,92,810/- and remaining amount of Rs.98,636/- and Rs.99,440/- as shown as SubSerial No. 1 and 2 of S. No. 4 of their Form 26AS, is also for supply of stone ballast, but presently the work order for the same is not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e tax was to be paid by service provider and 50% by the service recipient) the on the basis of decision of this Tribunal referred earlier. Adjudicating Authority denied the benefit so claimed in terms of the Notification No 30/2012-ST. First appellate authority dropped the demand made in respect of the supply of stone ballast but maintained the order of original authority in respect of denial of benefit under Notification No 30/2012-ST. 4.5 Now, I am concern only with the demand made in respect of the amount which appellant has admitted as leviable to service tax but has claimed the benefit of 50% on the basis of Notification No 30?2012-ST. I find that Chandigarh Bench has in the referred judgment has held as follows:- "14. We further take a note of the fact that in the case of Bharat Bhushan Gupta & Company (supra) observed as under :- "The Board has been constituted in terms of the provisions of Section 3 of the Act, as was enacted by the State Legislature. It is a body corporate which consists of a Chairman, a Chief Administrator and such other members, as the State Government may, from time to time, appoint by a notification. The Chief Administrator shall b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any kind of tax on the Board. Where any liability, as per law, is on the Board, that cannot be shifted on the contractors by way of the aforesaid clause. As per the provisions of Finance Act, 1994, as amended up to date read with Notification No. 30/2012-S.T., dated 20-62012 on the works contracts the liability is 50% on the contractor, whereas 50% is on the contractee, i.e., service provider and the service recipient. The stand of the petitioners was that for any alleged levy on the petitioners, namely, the contractors/service provider, the department never issued any notice seeking to levy the tax. Notice was issued to the Board. From the running bills of the petitioners, the Board had deducted the amount of tax, which is to be paid by the Board, in case the tax is leviable, which was totally uncalled for. A perusal of the aforesaid clause shows that the contractor is liable to pay various taxes, as mentioned in the clause, directly to the department in accordance with the Rules and the Regulations in force from time to time. The case of neither of the parties is that the liability, which may be put on the contractor/service provider, if tax is leviable, is being passed on to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct, 1956 (1 of 1956)"; The Finance Act, 1994 was restructured and Section 65 was omitted vide Ntfn. No. 20/2012 S.T., dated 5-6-2012 w.e.f. 1-7-2012. There is no definition in body corporate given in the Finance Act, 1994 w.e.f. 1-7-2012. The Companies Act, 1956 was replaced by Companies Act, 2013. The [Section] 2(11) of Companies Act, 2013 define the word "body corporate" as under :- Section 2(11) "body corporate" or "corporation" includes a company incorporated outside India, but does not include - (i) a co-operative society registered under any law relating to co-operative societies; and (ii) any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf; This definition is wider definition and only limit is the two exclusions mentioned therein. None of the entity is to whom services were provided fall under these two exceptions/exclusions. The Improvement Trust are "Body Corporate" as per Section 3 of 'The Punjab Town Improvement Act, 1922 which reads as under :- "Section 3. - Creation and incorporation of trust. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was converted into Punjab Small Industries& Export Corporation Ltd. w.e.f. 21-10-1982 which is engaged in business/profession to acquire and hold movable and immovable property. It also gave loan in cash or in kind or in form of building, developed plot of land in the small industry state or machinery and equipment on lease or on hire purchase basis to borrower for the purpose of small, cottage and other industries. It furnishes guarantee to the scheduled banks for the repayment of loans to borrower for development of industries, etc. Therefore, the same is also covered as business entity a body corporate. Therefore, we hold that the appellant has provided the services to a business entity registered at body corporate and are required to pay 50% Service Tax in terms of Sr. No. 9 of the Notification No. 30/2012-S.T., dated 20-62012. 18........ 19. In view of this, we pass the following order :- (a) .................................. (b) ...................................... (c) For other services and flats constructed after 1-42015, the appellant is entitled for the benefit of Notification No. 30/2012-S.T., dated 20-6-2012 at Sr. No. 9 i....