TMI Blog2024 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine the Service Tax liability. The Hon ble Madras High Court in FIRM FOUNDATIONS HOUSING PVT. LTD. VERSUS PRINCIPAL COMMISSIONER, OFFICE OF THE PRINCIPAL COMMISSIONER OF SERVICE TAX [ 2018 (4) TMI 613 - MADRAS HIGH COURT] held that the reporting of income in the P and L is irrelevant for the purposes of determination of service tax payable and thus the basis of the impugned assessment is erroneous. Moreover, income reflected in the Balance Sheet is for Income Tax purposes, which cannot be used for the purpose of service tax without any corroboratory evidence. The Hon ble Punjab Haryana High Court in COMMISSIONER OF CENTRAL EXCISE COMMISSIONERATE, LUDHIANA VERSUS M/S MAYFAIR RESORTS, NHI, JALANDHAR [ 2011 (3) TMI 175 - PUNJAB AND HARYANA HIGH COURT] held that the Department had to show evasion of Service Tax and that the money found with the assessee represented proceeds of services provided by it, which has admittedly not been done in the present case by the Department. Extended period of limitation - HELD THAT:- Mere non-payment of tax will not sustain the allegation of suppression of facts for invoking extended period as nothing has been shown which points toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue from operations is lower than the amount shown in ST-3 Returns, but this was rejected by the Department as an afterthought even though there was an FIR dated 31.08.2010 to the effect that the Appellant s relevant records had been lost. Accordingly, Show Cause Notice dated 17.10.2014 was issued by invoking extended period of limitation for the abovementioned Financial Years proposing demand for Service tax, interest and imposition of penalty. But for F.Y 2011-12, since the Appellant had reflected more amount in the value of taxable services shown in ST-3 Returns as compared to Revenue from Operations shown in the Balance Sheet, no Service Tax demand was proposed. 3. The impugned order confirmed all demands as proposed in the Show Cause Notice on the basis of mismatch of ST-3 Returns and Balance Sheet, hence the present appeal before the Tribunal. 4. Learned Counsel for the Appellant submits that for the F.Y 2009-10, the figures reflected in the duly audited Revised Balance Sheet submitted to the Department should have been taken into consideration by the Adjudicating Authority. The Appellant had informed the Department the reasons of showing reduced Service Charge i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Pvt. Ltd. vs. Commissioner of S.T., Noida 2019 (27) G.S.T.L. 397 (Tri-All). Synergy Audio Visual Workshop Pvt. Ltd. vs. Commissioner of Service Tax, Bangalore 2008 (10) S.T.R. 578 (Tri.-Bang.) Tempest Advertising (P) Ltd. vs. CCE Hyderabad-II 2007 (5) S.T.R. 312 (Tri.- Bang.) CCE Ludhiana vs. Deluxe Enterprises 2011 (22) S.T.R. 203 (Tri.-Del.). 7. Learned counsel also states that extended period of limitation cannot be invoked as the Appellant was regularly filing S T - 3 Returns, so the Department cannot take a stand that it is only on going through the Balance Sheet that it could examine the factual position. We find that the CBEC Circular No.113/7/2009-S.T., dated 23-4-2009 vide F.No.137/158/2008-CX. 4 and CBEC Circular No.185/4/2015-ST dated 30.6.2015 vide F.No.137/314/2012 clearly directs the Assessing Officer to effectively scrutinize the returns at the preliminary stage as held by the Tribunal in Gannon Dunkerley Co Ltd. vs. CST(Adj) Delhi 2021 (47) G.S.T.L. 35 (Tri-Del) and Luit Developers (supra). 8. Learned counsel for the Appellant further relies on the order of the Tribunal in M/s Chemix Oil Pvt. Ltd. vs. Commissioner of CX ST Shimla 2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chose not to pay. In support, he relies on the following judgements :- Continental Foundation Joint Venture Holding vs. Commissioner of Central Excise, Chandigarh-I 2007 (216) E.L.T. 177 (SC). Anand Nishikawa Company Ltd. vs. Commissioner of Central Excise 2005 (188) E.L.T. 149 (SC). Religare Securities Ltd vs. CST (2014) 36 S.T.R. 937 (Tri-Del). M.P Laghu Udhyog Nigam Ltd. vs. CCE, Bhopal (2015) 37 S.T.R. 308 (Tri-Del). 12. The Learned D.R. justifies and reiterates the findings of the impugned order and accordingly prays that the appeal be dismissed being devoid of any merits. 13. Heard both sides and perused the appeal records. 14. We observe that the Revised Balance Sheet for F.Y 2009-10 has been duly audited. Thus, there was no reason for the Adjudicating Authority and the Department to not take its figures into consideration. On taking the Revised balance Sheet into consideration, it can be seen that the receipts decrease by Rs.81,15,826/-, which even otherwise leads to reduction in Tax demand of Rs.8,35,930/- at the rate of 10.30%, thereby wiping out any alleged service tax difference of Rs.7,72,960/- for F.Y 2009-10. 16. We find that it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a public document accessible from Registrar of Companies website. Therefore, no suppression can be alleged to invoke the extended period as held in Hindalco Industries Ltd. (supra), Kirloskar Oil Engines Ltd. (supra), Rajaram Maize Products (supra) and Luit Developers (supra). It is our considered view that mere non-payment of tax will not sustain the allegation of suppression of facts for invoking extended period as nothing has been shown which points towards any omission or commission by the Appellant which shows the intention to evade tax as held by MP Laghu Udyog Ltd. (supra). We find that the Department has not adduced any positive evidence to show malafide intention for evasion of service tax and therefore extended period is erroneously invoked as held in Pushpam Pharmaceuticals Limited (supra) and Continental Foundation Joint Venture Holding (supra). 19. Therefore, in view of the above discussions and decisions cited supra, there can be no demand of Service tax of Rs.56,39,991/- and interest under Section 75 and penalty imposed under Section 78 of the Act is set aside. 20. As far as interest demanded to the tune of Rs.30,585/- for the period F.Y 2009-2013 on late pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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