2010 (11) TMI 220 - AT - Service Tax

Survey - Demand - Business auxiliary services - There is also no dispute about the fact that during the visit of the survey team the Income-tax authorities on 17-10-2003 the respondent declared an undeclared income of Rs. 4, 00, 000 to lie Income-tax authorities which was added to their taxable income for 2003-2004 - it cannot be said that the entire income of Rs. 4, 00, 000 declared by them to the Income-tax authorities on 17-10-2003 is attributable to the taxable services provided by them to their clients during the period from 1-7-2003 to 17-10-2003 - the evidence gathered by the Department is not sufficient to establish even the preponderance of probability - Decided in the favour of the assessee

Summary

Issues:
- Service tax demand and penalty imposed on the respondent for undeclared income
- Appeal against the order-in-original by the Deputy Commissioner
- Commissioner (Appeals) setting aside the Deputy Commissioner's order
- Department's appeal before the Tribunal challenging the Commissioner (Appeals) order

Analysis:
- The respondent was engaged in selling SIM cards, recharge coupons, and mobile phones. During an audit, undeclared income of Rs. 4,00,000 was found in cash on their premises. A show cause notice was issued for service tax demand and penalties. The Deputy Commissioner confirmed the demand and penalties, noting the respondent's non-appearance for a hearing.
- The Commissioner (Appeals) set aside the Deputy Commissioner's order, citing lack of evidence linking the undeclared income to taxable services provided by the respondent. The department appealed this decision before the Tribunal.
- The department argued that the undeclared income was generated from providing taxable services, emphasizing the recovery of cash from the respondent's premises. The respondent's counsel contended that the income declaration was not necessarily from taxable services, pointing out the lack of inquiry and evidence.
- The Tribunal found that the department's assumption lacked sufficient evidence. It noted the respondent's varied business activities and the absence of inquiries into their turnover. Citing legal precedents, the Tribunal emphasized the need for a reasonable degree of proof, which was lacking in this case.
- Ultimately, the Tribunal dismissed the revenue's appeal, upholding the Commissioner (Appeals) decision due to insufficient evidence linking the undeclared income to taxable services provided by the respondent. The decision was supported by a previous Tribunal ruling in a similar case.

This detailed analysis covers the issues, arguments, and the Tribunal's reasoning leading to the dismissal of the revenue's appeal.