2025 (5) TMI 2164 - AT - Service Tax

Recovery of service tax with interest and penalty - mismatch of gross receipt in ITR nad ST-3 return - reliability of third party data - HELD THAT - From the perusal of the return it is evident that the value of sale of services indicated in the ITR return is zero. The figure of the sale of services taken for computing the demand in the Show cause notice and orders of the lower authority is Rs 23, 89, 359/-. What is the basis of the said figure is not evident. Impugned order compares the said amount with the gross profit indicated in the return. The appellant is having major earnings on the account of sale of goods. It is also found that revenue has undertaken the investigation if the matter in most shoddy matter and have never even attempted to arrive at the correct gross value of the services provided and have just relied upon the information received from Income Tax department without even caring to verify the correctness of the information received. There are no merits in the impugned order and the same is set aside - appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

(a) Whether the demand of Service Tax amounting to Rs. 2,96,582/- along with interest and penalties under various sections of the Finance Act, 1994 is justified based on the alleged suppression of facts and short payment of service tax by the appellant for the financial year 2015-16Rs.

(b) Whether the adjudicating authority and Commissioner (Appeals) complied with the principles of natural justice, particularly regarding opportunities for personal hearingRs.

(c) Whether the appellant's contention that the discrepancy in declared service tax payments was a mistake is sustainable in light of the evidence regarding payment dates and cess applicabilityRs.

(d) Whether the show cause notice (SCN) based on third-party data from the Income Tax Department is valid and whether the demand can be sustained despite discrepancies between figures in the SCN and the appellant's Income Tax Return (ITR)Rs.

(e) Whether penalties under sections 77, 77(1)(c), 77(2), and 78 of the Finance Act, 1994 are justified for non-maintenance of accounts, non-submission of documents, contravention of statutory provisions, and suppression of facts with intent to evade service taxRs.

(f) Whether the demand of late fee under Rule 7C read with Section 70 of the Finance Act should be dropped.

2. ISSUE-WISE DETAILED ANALYSIS

(a) Legitimacy of Service Tax Demand and Associated Penalties

Relevant legal framework includes Sections 65B(44), 73(1), 75, 77, 78 of the Finance Act, 1994, and Rule 7C of the Rules read with Section 70 of the Finance Act. Section 73(1) provides for recovery of service tax in cases of non-payment or short payment, Section 75 mandates interest on delayed payments, Section 77 and its subsections prescribe penalties for non-compliance such as failure to maintain accounts or submit documents, and Section 78 imposes penalties for suppression with intent to evade tax.

The adjudicating authority confirmed the demand of Rs. 2,96,582/- including Education Cess and Secondary & Higher Education Cess, imposed interest and penalties for failure to pay service tax, suppression of facts, non-maintenance of accounts, and non-submission of documents. The late fee demand was dropped.

The appellant contended that the short payment was a mistake, asserting that Rs. 3,55,033/- was deposited but only Rs. 24,500/- was shown in the ST-3 return by error. The Court examined payment challans and noted that payments including Education Cess and Secondary & Higher Education Cess were made after these cesses were abolished effective 01.06.2015, indicating that payments were unrelated to the disputed financial year and thus not applicable. This suggested conscious misrepresentation rather than mistake.

The Court also observed that the appellant failed to correctly assess and pay service tax under the self-assessment procedure, resulting in suppression of facts and short payment detected only upon departmental enquiry. This justified imposition of penalty under Section 78.

Regarding penalties under Section 77 and its subsections for non-maintenance of accounts and non-submission of documents, the appellant failed to produce documents despite multiple departmental requests and summons, warranting the penalties imposed.

(b) Compliance with Principles of Natural Justice

The appellant alleged violation of natural justice, claiming denial of opportunity for personal hearing. The Court reviewed the record and found that personal hearings were scheduled on four occasions (16.03.2021, 10.06.2021, 26.07.2021, and 17.08.2021) but the appellant failed to appear on any date. Consequently, the adjudicating authority decided the case based on the available record. The Court held that there was no breach of natural justice as ample opportunity was provided but not availed.

(c) Validity of Show Cause Notice Based on Third-Party Data and Discrepancies with Income Tax Return

The SCN was issued based on third-party data from the Income Tax Department indicating gross receipts of Rs. 23,89,359/- for FY 2015-16, whereas the appellant declared only Rs. 1,75,000/- in ST-3 returns. The appellant challenged the SCN's validity on the basis that the gross profit before tax shown in the ITR was Rs. 18,03,429/-, not matching the SCN figure, and also that the ITR indicated zero value of sale of services.

The Court noted that the appellant had confused gross profit with gross receipts, which is a fundamental error, and found no merit in the contention that the SCN was invalid. However, the Court observed that the revenue's investigation was "shoddy" and lacked due diligence, as it relied solely on third-party data without verifying the correctness or attempting to ascertain the actual gross value of services provided. The revenue failed to respond to requests for documents from the Income Tax Department and did not reconcile discrepancies between figures.

Despite these investigative shortcomings, the Court found that the appellant's failure to maintain accounts and submit documents, coupled with the discrepancy in declared service tax, amounted to suppression with intent to evade tax, thus sustaining the demand and penalties.

(d) Timeliness and Procedural Aspects of Appeal

The appellant's appeal was filed after the prescribed two-month period under Section 85(3A) of the Finance Act, but the Supreme Court had extended the filing deadline. The Court held that the appeal was within time as the impugned order was received on 09.01.2022 and the appeal was filed on 29.04.2022, thus complying with the extended timeline.

3. SIGNIFICANT HOLDINGS

"The appellant has consciously shown service tax payment of Rs. 24,500/- only in their ST-3 return not by mistake. I also observe that how it is possible that huge service tax amounting to Rs. 2,67,033/- has been deposited in the beginning of the financial year 2015-16. The appellant is consciously misleading the department which is quite deplorable and matter of concern."

"Under the self-assessment procedure specified in the statute, appellant was required to assess & pay their Service Tax liability correctly on their own. In the instant case the appellant has not shown correct taxable value in their ST-3 returns and short payment of Service Tax could be detected only during the course of enquiry conducted by the Department. Thus, it is a clear case of suppression of facts and contravention of the statutory provisions, with intent to evade payment of Service Tax. Thus, penalty of Rs. 2,96,582/- imposed by the adjudicating authority under Section 78 of the Act is justified."

"The appellant has not maintained books & accounts, contravenes various provisions of Act and also failed to produce documents called for by the department, therefore, penalty of Rs. 10,000/- each imposed under Section 77, 77(1)(c) & 77(2) of the Act are justified."

"The adjudicating authority has given opportunity of personal hearing on 16.03.2021, 10.06.2021, 26.07.2021 and 17.08.2021 but appellant has not appeared for personal hearing on any dates. Therefore, the adjudicating authority has no other option to decide the case on the basis of record available in file. Thus, I find no force in the contention of the appellant that the adjudicating authority has not followed principle of natural justice."

"The appellant has mistaken by claiming gross profit before tax as gross amount received during the F.Y 2015-16. Therefore, I find no substance in the contention of the appellant that the show cause notice is invalid."

"The revenue has undertaken the investigation in most shoddy manner and have never even attempted to arrive at the correct gross value of the services provided and have just relied upon the information received from Income Tax department without even caring to verify the correctness of the information received."

Final determination: The appeal filed by the appellant was allowed, and the impugned order was set aside on the ground that the departmental investigation was inadequate and unreliable, particularly due to failure to verify the correctness of third-party data and reconcile discrepancies with the appellant's ITR. Consequently, the demand and penalties were found unsustainable in the absence of proper verification and evidence.