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2022 (3) TMI 50 - AT - Service TaxDemand of differential tax - CA certified Reconciliation of Form 26AS and ST-3 Returns clearly shows that some service recipients deducted TDS on the entire rent/commission plus the Service Tax component causing inflation in Form 26AS as compared to ST3 Returns - extended period of limitation - revenue neutrality - HELD THAT:- There are force in the contention of the Ld Counsel of the appellant that CA Certified Reconciliation of ST-3 Returns and Form 26AS clearly shows that inflated figure in Form 26AS is because some Service Recipients deducted TDS not only on the rent/commission but also on the Service Tax component. The Service Recipients also confirmed the same. There are force in the contention of the appellant that part of the service tax being demanded by the Department on RCM basis cannot be sustained since Service tax was already collected by Service Providers as seen from invoices and Reconciliation Certificate. Extended period of limitation - Service tax demand for the period April 2014-September 2014 is beyond the extended period of 5 years - revenue neutrality - HELD THAT:- The Department has done audit of the appellant for February, 2014-15 as per Detailed Manual Scrutiny Report dated 15.12.2017, which includes checking of Form 26AS as clearly mentioned in Para 5.2 of CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012 and therefore no suppression can be alleged for this period - proviso to Section 73(1) has not been invoked in the operative part of the SCN and therefore extended period cannot be invoked as held in M/S SATISH KUMAR & CO. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2018 (5) TMI 611 - CESTAT MUMBAI] - thus invoking extended period cannot be sustained for part of tax demand raised on RCM basis by virtue of it being a revenue neutral situation since the appellant is eligible for credit if it had done tax payment. The entire demand fails on merits as well as on limitation - there can be no imposition of Service tax, interest and penalty on the appellant - Appeal allowed - decided in favor of appellant.
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