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2018 (10) TMI 1476 - AT - Service TaxBusiness Support service - appellants being the authorized agents of the MCD for collection of toll - demand of Service Tax - scope of SCN - Time limitation - Held that:- Municipal Corporation of Delhi is a statutory body which is allowed by law to levy certain duties and taxes, toll tax being the one such levy. Seeing from this angle, the function of collecting toll tax is a function sovereign in nature. Hence the activity being done by MCD itself or being delegated to be done by someone else authorized in this respect, the activity still retains the character of it being sovereign in nature. Therefore the element of any Business or commerce cannot be attributed to such an activity - Once this is the finding which is otherwise correct as apparent from record, the question of holding the same as a service i.e. the one meant for any Business or commerce has no sustainability. Scope of SCN - Held that:- SCN initially made proposal to demand tax under the category of Business Support Service. The mention of this activity as BAS in the final para of show cause notice is nothing more than a typographical error as the show cause notice is discussing about the features of Business Support Service. The authority below has ignored this aspect rather has confirmed the demand under Business Auxiliary Service - This is the law settled that Adjudicating Authority cannot go beyond the scope of show cause notice. Time Limitation - Held that:- The appellant is not liable to service tax for allegedly rendering Business Auxiliary Service to MCD. He accordingly is held to be under bonafide belief of have no tax liability - Department has otherwise failed to point out any positive act of suppression part of the appellant. No question arises for invoking extended period of limitation - The period in dispute herein is w.e.f. 01/04/2008 to 15/07/2010 show cause notice is dated 30/11/2010. Hence some period is beyond limitation. For the period within one year of show cause notice, the demand has already held non-sustainable. The Adjudicating Authority below has committed an error while holding sovereign function of MCD when delegated to appellant as the activity of Business Auxiliary Service on part of the appellant - appeal allowed - decided in favor of appellant.
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