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2023 (2) TMI 613 - DELHI HIGH COURTTaxability - Works Contract Service or Construction of Complex service? - construction activities for development of residential complexes and flats in southern India - invocation of extended period of limitation - suppression of facts or not - Whether the proviso to Section 73(1) of the Act was applicable on account of any wilful mis-statement or suppression of facts? - HELD THAT:- There was no suppression as to the activities being carried out by the respondent. It is also relevant to note that the respondent’s contention that its services were covered under the ‘Works Contract’ Services is not insubstantial. In cases where another interpretation is plausible and an assessee proceeds to file a return on that basis, it would not be apposite to conclude that the assessee has made any mis-statement or suppressed any fact merely because the Revenue interprets the statutory provision differently. This is notwithstanding that the Revenue may finally prevail in its interpretation of the statutory provisions and the assessee may not. Mis-statement and suppression of facts must necessarily be examined from the perspective of sufficient disclosure or statements of facts and not contentious interpretations of statutory provisions. Once an assessee has truly disclosed the facts, it would not be apposite to invoke the provisions of Section 73(1) of the Act only on the ground that the assessee has classified its services under a head which the revenue considers erroneous. However, if such classification is, ex facie, untenable and done with the intent of evading any liability, the provisio to section 73(1) of the Act, would be applicable. In Pushpam Pharmaceutical Company v. Collector of Central Excise, Bombay [1995 (3) TMI 100 - SUPREME COURT], the Supreme Court had interpreted the proviso to Section 11A of the Central Excise Act, 1944, which was similarly worded as the proviso to Section 73(1) of the Act, and held that Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. In view of the authoritative decisions rendered by the Supreme Court, the learned Tribunal held that the Commissioner had erred in holding that the respondent had suppressed information from the Department regarding payment of service tax. Thus, in the given facts, the proviso to Section 73(1) of the Act could not be applied. The respondent had filed its return of service tax on the basis that its services were taxable as ‘Works Contract’ Services. It had availed the Cenvat Credit to the extent of ₹2,44,48,095/- and had paid the balance amount in cash in discharge of the liability, which was computed on the aforesaid basis. There is no allegation that the respondent had concealed that it was carrying on the activity of construction and selling residential flats. Appeal of Revenue dismissed.
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