2025 (5) TMI 262 - AT - Service Tax

Demand raised invoking proviso to Section 73(1) of the Finance Act 1994 - demand raised solely on the basis of a discrepancy between income reflected in Income Tax Returns/Form 26AS and Service Tax Returns (ST-3) without independent investigation or corroborative evidence establishing the provision of taxable service - eligibility for the exemption entry no. 9A of the Notification No. 25/2012-ST dated 20.06.2012 - HELD THAT - NSDC is primarily a public private partnership organisation dedicated to skill development and it has been envisaged as financing and administrative organisation to support creation of skillable and profitable vocational training institutions. As a part of their core functions they are also engaged in lending business also whereby they help build training capacity through private sector participation. They are also engaged in implementation and facilitation of Central and State Government Schemes including the schemes of other institutions Central Government and State Government including Ministry of Urban Development and Improvement (MUDI). The Adjudicating Authority has denied this exemption on the basic ground that they have not been able to produce any certificate of their being an approved training partner of NSDC and that their name is not appearing in the list of approved partners therefore a plain reading of notification would debar them from the benefit of said notification at serial no. 9A - it is not in dispute that NSDC is providing interalia soft loans at concessional rate of interest only for the purpose of skill development or building training capacity consistent with their objective to partner with Central and State Governments for creating and developing favourable eco system for skill development. In the present appeal from the loan agreement itself it is apparent that the soft loan has been extended for specific skill development programmes to be conducted by the appellant. Various other documents submitted including the one where the order is from the State Government of Bihar show that they were imparting skill upgradation training as a part of NULM. It is also observed that NSDC is engaged in implementing the skill development component of various schemes run by different ministries. Thus holistically considering the objective for creation of NSDC and it s role it would be obvious that the loan was provided for skill development programme only and was in relation to schemes being implemented by other Central Government Ministries and State Governments. Plain reading of the notification would show that the intention is to exempt all the services provided by NSDC or by sector skill council approved by NSDC or by a training partner approved by the NSDC in relation to inter alia any scheme implemented by NSDC. The rationale adopted by the Adjudicating Authority that since they do not have a certificate and that their name is not figuring in the list of partner shown on the website of the NSDC it would in itself be a sufficient to treat them as not being an approved training partner is not correct when there is a provision for both types of partners funded and non-funded. In this case we find that the funding has been done by the NSDC by way of concessional loan for specified end purpose and therefore they would be in the nature of funded partner. Hon ble Supreme Court in the case of Government of Kerala Vs Mother Superior Adoration Convent 2021 (3) TMI 93 - SUPREME COURT interalia considered this argument for strict construction and for allowing the benefit to the Revenue in terms of Dilip Kumar case 2018 (7) TMI 1826 - SUPREME COURT (LB) and held that in the case of beneficial notification the exemption contained must be given full effect - placing reliance on this judgment in the present appeal the benefit of entry no. 9A of notification can be extended to the appellant in the given factual matrix. Therefore on this ground also the demand will not sustain. It is not required to examine other grounds including the plea of limitation taken by the appellant. Conclusion - i) The demand raised solely on the basis of differences between Income Tax Returns/Form 26AS and Service Tax Returns without independent investigation or valuation is unsustainable and must be set aside. ii) The appellant qualifies for exemption under Serial No. 9A of Notification No. 25/2012-ST as a funded or non-funded partner of NSDC in relation to skill development programmes implemented or supported by NSDC and various government schemes. Appeal allowed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether a demand for service tax raised solely on the basis of a discrepancy between income reflected in Income Tax Returns/Form 26AS and Service Tax Returns (ST-3) is sustainable without independent investigation or corroborative evidence establishing the provision of taxable service.

2. Whether the appellant is eligible for exemption under Serial No. 9A of Notification No. 25/2012-ST dated 20.06.2012, which exempts services provided by the National Skill Development Corporation (NSDC) or its approved partners in relation to specified skill development programmes.

3. Whether the invocation of the extended period of limitation for raising the demand under proviso to Section 73(1) of the Finance Act, 1994, is justified.

4. The applicability of judicial precedents regarding interpretation of exemption notifications, particularly the strict interpretation principle and its exceptions in the context of beneficial exemptions.

Issue 1: Sustainability of Demand Based Solely on Discrepancy Between ITR/Form 26AS and ST-3

The relevant legal framework includes Section 73(1) of the Finance Act, 1994, which governs recovery of service tax dues, and the procedural requirements for issuance of show cause notices. Precedents cited by the appellant establish that demands based solely on differences between tax returns without independent investigation or evidence of taxable service provision are not sustainable.

The Tribunal noted that the Department's demand arose exclusively from a reconciliation exercise that revealed a higher income reflected in Income Tax Returns/Form 26AS compared to Service Tax Returns. There was no independent inquiry or corroboration to establish that the appellant had indeed provided taxable services. The appellant's defense relied on this principle, supported by a series of judgments from various High Courts and CESTAT benches emphasizing that mere discrepancies in returns cannot form the sole basis for demand.

The Department argued that the appellant failed to provide clarifications or data to explain the discrepancy and that the appellant was registered for commercial training services, thus justifying the presumption of taxable service provision. However, the Tribunal found this presumption insufficient to sustain demand without substantive proof.

Applying the law to facts, the Tribunal held that the show cause notice itself was flawed as it did not establish the charge of taxable service provision beyond the discrepancy. Consequently, any further proceedings based on such a notice lacked legal foundation. The Tribunal concluded that the demand was not sustainable on this ground alone.

Issue 2: Eligibility for Exemption under Notification No. 25/2012-ST Serial No. 9A

Notification No. 25/2012-ST, Serial No. 9A, exempts services provided by NSDC, Sector Skill Councils approved by NSDC, assessment agencies, and training partners approved by NSDC or Sector Skill Councils in relation to specified skill development programmes.

The Adjudicating Authority had denied exemption on the ground that the appellant failed to produce certification or evidence of being an approved training partner of NSDC, and that the Tripartite Agreement with NSDC was essentially a loan agreement rather than an approval for training services. The Authority also noted that the appellant's projects were not clearly linked to NSDC schemes and that work orders were in the name of another entity, M/s Datapro Computers Pvt Ltd., not the appellant.

The Tribunal undertook a detailed examination of the Tripartite Agreement, which was a soft loan agreement extended by NSDC to the appellant and Datapro for conducting skill development programmes aimed at vocational training and employability enhancement in sectors like retail, banking, and insurance. The Tribunal found that the appellant had a back-to-back Memorandum of Understanding (MoU) with Datapro, enabling them to execute skill training programmes under various government schemes, including the National Urban Livelihood Mission (NULM).

The Tribunal observed that NSDC functions as a public-private partnership entity under the Ministry of Skill Development and Entrepreneurship (MSDE), providing funding and administrative support to skill development initiatives implemented by central and state governments. NSDC's role includes lending concessional loans and facilitating skill training programmes through various partners, both funded and non-funded.

Critically, the Tribunal held that the absence of an explicit certificate or inclusion in NSDC's published list of approved partners does not preclude the appellant from being considered a funded or non-funded partner within the meaning of the notification. The term "partner" is not defined in the notification, and the soft loan agreement and associated documentation demonstrated a nexus between the appellant's activities and NSDC's schemes.

Relying on the holistic purpose and objective of the notification-to exempt services related to skill development programmes implemented or supported by NSDC-the Tribunal concluded that the appellant's services fell within the ambit of Serial No. 9A. The vocational training, including computer literacy and skill upgradation, was consistent with the notification's intent.

Issue 3: Invocation of Extended Period of Limitation

The Department invoked the extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994, justifying it on the grounds that the appellant did not furnish required information and indicated nil exempted services in the returns.

The Tribunal did not delve deeply into this issue since the demand itself was held unsustainable on substantive grounds. The appellant had also raised interpretational issues regarding the levy of service tax on educational and training services during the relevant period, which could bear on limitation. Given the dismissal of the demand on primary grounds, the Tribunal refrained from adjudicating the limitation question.

Issue 4: Interpretation of Exemption Notifications and Precedents

The Department relied heavily on a Supreme Court judgment holding that exemption notifications are to be interpreted strictly and any ambiguity must be resolved in favor of the Revenue. The Adjudicating Authority had applied this principle to deny exemption.

The Tribunal distinguished this principle by invoking a later Supreme Court decision which clarified that beneficial exemptions must be construed liberally to give full effect to their object. The Tribunal cited the Supreme Court's ruling that while exemption notifications generally attract strict interpretation, beneficial exemptions aimed at public welfare or social objectives require a purposive and liberal construction.

Applying this principle, the Tribunal found no ambiguity in the notification's scope that would preclude the appellant's claim. Instead, the exemption was designed to support skill development initiatives, and the appellant's activities aligned with this purpose. Thus, the beneficial nature of the exemption warranted extending the benefit to the appellant.

Significant Holdings

"Merely because the Department has sought certain information from the appellant which was not provided by the appellant, it cannot be presumed by the Department that they were engaged in providing taxable service and to the extent demand being made in the show cause notice would tantamount to making a bald allegation without any substantive grounds and evidence and asking the appellant to defend the same in the course of adjudication."

"The term 'partner' has not been defined anywhere in the notification. The second question would be whether it is in relation to any scheme being implemented by NSDC, we find that it is an admitted fact that NSDC is not only implementing training programme on its own but is also funding and supporting the skill development component of other programmes run by other central government ministries and state governments as long as it is consistent with their objective for which the said specialised agency has been created."

"The beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to... We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted."

Final determinations:

- The demand raised solely on the basis of differences between Income Tax Returns/Form 26AS and Service Tax Returns without independent investigation or valuation is unsustainable and must be set aside.

- The appellant qualifies for exemption under Serial No. 9A of Notification No. 25/2012-ST as a funded or non-funded partner of NSDC in relation to skill development programmes implemented or supported by NSDC and various government schemes.

- The invocation of the extended period of limitation was not examined in detail due to the dismissal of the demand on substantive grounds.

- The strict interpretation principle of exemption notifications does not apply rigidly to beneficial exemptions such as the one under consideration; a purposive and liberal construction is warranted.

Accordingly, the appeal was allowed, and the impugned order and demand were set aside.