TaxTMI 
TaxTMI 
2023 (10) TMI 1616
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....amount towards payment of service tax for the month of March 2009. The department was of the view that appellant cannot adjust later in the month of March 2009 and can adjust only in the subsequent month / quarter. The show cause notice was issued proposing to demand the service tax of Rs. 71,760/- so adjusted along with interest and for imposing penalty under section 76 of the Finance Act, 1994. After due process of law, the original authority confirmed the demand, interest and imposed penalties. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the learned counsel, Ms. B. Kavitha appeared and argued the matter. It is submitted by the learned counsel that the appellant had paid excess amount ....
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....or quarter, as the case may be" The said provision does not use the word "immediately". It merely states that the assessee can adjust the excess amount to a succeeding quarter or month. The assessee would be able to adjust only when there is service tax liability. Suppose, there is no service tax liability on the immediate succeeding month, the excess paid amount cannot be retained by the department. Tax can be collected only under the authority of law. The very same issue was considered by the Tribunal in the case of Dell India Pvt. Ltd. (supra). Relevant part of the order reads as under : "5.1 Here moot issue is whether the assessee can make claim for the excess payment made to the exchequer; if they can claim, whether they ca....
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....ular month against services provided, on which his service liability @ 10% adv. is Rs. 40 lakhs, he has paid tax of Rs. 50 lakhs on the basis of his estimated receipt of rupees five crores during the month, the excess tax payment of Rs. 10 lakh paid is like an advance payment of tax whose incidence has not been passed on to his customers. In fact, w.e.f. 1-3-2008, sub-rule (1A) of Rule 6 has been introduced by Notification No. 4/2008-S.T., dated 1-3-2008 which also provides that without prejudice to the provisions of sub-rule (1) of Rule 6, every person liable to pay service tax may, on his own, pay an amount as service tax in advance to the credit of Central Government and adjust the amount so paid against service tax l....
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....he hierarchy will prevail. Therefore, if excess payment of tax in a month is not on account of reasons involving interpretation of law, taxability, classification, valuation or applicability of exemption notification and is purely on account of inability of the assessee to exactly determine the total amount collected during the month against the bills raised as a result of which he had determined his tax liability on estimation basis, the excess amount of tax paid during the month can be adjusted against his tax liability during other months and in this regard, there cannot be any monetary limit." 6. Similar issue was considered by the Tribunal in the case of Arun Exello Foundation (supra). Relevant part of the order reads as under : ....
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....mber, 2016 while filing returns. The excess amount paid by appellant during April, 2016 to June, 2016 has been allowed by department to be adjusted in September, 2016, holding the view that it is adjusted in the immediate succeeding quarter. However, the excess payments made by appellant from April, 2015 till March, 2016 was not allowed to be adjusted for which the present demand has been made. The demand therefore does not arise out of short-payment of tax. It arises out of a situation where appellant adjusted his excess payment towards the liability that incurred later. The Ld. AR has much stressed that since the word 'month' is followed by the word 'quarter', the Rule has to be interpreted in such a way that the adjustment can be made on....