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2023 (12) TMI 46 - CESTAT KOLKATAExtended period of limitation - Demand based on Form 26AS (TDS Statement) - entire proceedings has been carried out on the basis of information available in Form 26AS of Income Tax department - suppression of fact sor not - HELD THAT:- It is observed that the Service Tax Department has demanded service tax solely on the basis of the data provided by the Income Tax Department, which is the gross value as received by the Appellant. The department has not conducted any verification to ascertain whether the amount mentioned in the Form 26AS was received on account of providing any taxable service by the Appellant.It is observed that the demand of Service Tax cannot be made solely on the basis of difference between Income tax return and 26AS Statement, as held by the Tribunal in the case of M/S KUSH CONSTRUCTIONS VERSUS CGST NACIN, ZTI, KANPUR [2019 (5) TMI 1248 - CESTAT ALLAHABAD]. The same view has been taken by the Tribunal, Kolkata, in the case of M/S LUIT DEVELOPERS PRIVATE LIMITED VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, DIBRUGARH [2022 (3) TMI 50 - CESTAT KOLKATA] wherein it has been held that the figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is evidence shown that it was due to a taxable service. The Notice in this case was issued on 08.09.2021, demanding service tax for the period 2016-17. The Department has not adduced any positive evidence to show malafide intention or mens rea for evasion of Service Tax on the part of the Appellant. Thus, the extended period cannot be invoked in this case to demand service tax on the Appellant. On perusal of the documents, it is found that the entire demand has been raised beyond the normal period of limitation. In view of the discussions above, the demand of service tax by invoking extended period is not sustainable in this case. Accordingly, it is held that the demand is liable to be set aside on the ground of limitation. The impugned order set aside - appeal allowed.
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