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2019 (11) TMI 1266 - AT - Service TaxAdjustment of excess paid service tax - appellant had adjusted the excess payment made by them during the period April 2015 to June 2016 in September 2016 - Revenue objected to the adjustment made on the ground that as per Rule 6(4A) of Service Tax Rules, 1994, the excess service tax paid could be adjusted only in the immediate succeeding month or quarter - HELD THAT:- From Rule 6(4A) of Service Tax Rules, 1994, it can be seen that the word ‘immediate’ is absent in the Rule. The Rule says that the assessee can adjust the excess amount paid by him against the service tax liability for the succeeding month or quarter, as the case may be. In September 2016, appellant realized the excess payment made during April 2015 to June 2016 and adjusted it in September 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. In the present case, the period for which excess payment has been disallowed is from April 2015 to March 2016. Even if the assessee files a refund claim in September 2016, when he realized that there is excess payment, the claim would be well within the time limit under section 11B. Further, it is also brought out from the record that the assessee has not collected service tax from the customer and therefore not passed on the tax burden to another. This being the case, the appellant would be otherwise eligible for refund. The provision for adjustment is to avoid the hassles of refund - The adjustment made by the assessee in the month of September 2016 can be said to be adjustment in accordance with Rule 6(4A) of the Service Tax Rules, 1994. Appeal allowed - decided in favor of appellant.
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