Service Tax Demand based on Form 26 AS from Income Tax Department without Investigation is Invalid

[CA Bimal Jain]

The CESTAT, Kolkata in M/S. PIYUSH SHARMA VERSUS COMMISSIONER OF CGST & CX, PATNA-I - 2023 (10) TMI 736 - CESTAT KOLKATA held that service tax demand based on Form 26 AS from the Income Tax Department without Investigation is Invalid.

Facts:

M/s. Piyush Sharma, (“the Appellant”) has undertaken and/or rendered services to telecommunication companies viz. Tata Teleservices Ltd., ATC Telecom Pvt. Ltd., ATC Infrastructure Services Pvt. Ltd. and Idea Cellular Infrastructure Ltd. of erection, commissioning, installation, completion fitting-out, repair and maintenance services to telecommunication towers of those companies, which also includes execution of Civil Construction Work.

The Income Tax Department, in Form 26 AS found that the Appellant has received an amount of Rs. 1,19,67,288/- during the period from 2012-13 to 2016-17 on which TDS was deducted by the service recipient, therefore, show cause notice dated April 23, 2018 (“the SCN”) was issued to the Appellant for demanding service tax.

Another demand was raised on February 11, 2020 for the period April 2017 to June 2017 based on the Best Judgement Method. The Appellant contested the SCN, but the demand proposed in the show cause notice was confirmed against the Appellant and passed an Order ("the Impugned Order”)

The Appellant appealed and submitted that the demand cannot be raised based on the figure of Form 26AS. Further submitted that the Appellant received contractual payments on the execution of ‘Works Contract Services’ and the Appellant had submitted the copies of work orders, payment particulars, copies of the invoices and Form 26AS for proper adjudication.

The Department reiterated the findings of the Impugned Order and submitted that the Appellant did not co-operate during the investigation, therefore, the demand has been rightly calculated based on Form 26AS.

Issue:

Whether Service Tax demand can be raised on the basis of Form 26AS without proper investigation by the Adjudicating Authority?

Held:

The CESTAT in M/S. PIYUSH SHARMA VERSUS COMMISSIONER OF CGST & CX, PATNA-I - 2023 (10) TMI 736 - CESTAT KOLKATA held as under:

• Noted that, the Appellant is a registered service provider and filing their Service Tax returns and no investigation has been conducted by the Adjudicating Authority, in these circumstances, the demand cannot be raised on the basis of Form 26 AS obtained from the Income Tax Department.
• Observed that, the SCN has been issued to the Appellant by invoking an extended period of limitation and some of the demand pertains to beyond five years and in this case, the demand has to be calculated in terms of Valuation Rules, 2006.
• Held that, the extended period of limitation is not invocable. Moreover, on the basis of Form 26 AS, no demand is sustainable against the Appellant.

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