2025 (6) TMI 1731 - AT - Service Tax

Extended period of limitation - short payment of tax due to mismatch between its ST-3 and 26AS/ITR returns - liability to pay service tax - Name of the appellant appearing in Form 26AS - Failure to extend cum-tax benefit to the appellant. Short payment of tax due to mismatch between its ST-3 and 26AS/ITR returns - HELD THAT - The appellant did file the reply to show cause notice on 01.04.2021 but the same was not considered by the learned appellate authority. It is also found that Order-in-Original was passed ex-parte on the ground that the appellant did not file the reply to show cause notice and did not attend the personal hearing which is factually incorrect because the appellant did not get the personal hearing notice from the respondent. Further it is found that it is a settled law that demand cannot be raised solely on the basis of difference between ST-3 and 26AS/ITR. This issue is no more res integra and has been considered by various benches of Tribunal and this Bench in the case of Indian Machine Tools Manufacturers Association Vs. Commissioner of Central Excise Panchakula 2023 (9) TMI 815 - CESTAT CHANDIGARH and Shreejee RMC Private Limited Vs. Commissioner of CGST C.E. Rohtak 2024 (5) TMI 671 - CESTAT CHANDIGARH has examined this issue and it was held that Coming to third and final issue as to whether any demand can be sustained on the basis of difference between the figures of ST-3 Returns and the balance sheets we find that it is a settled principle of law that service tax can be levied only when there is a clear Identification of service provider service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided service tax cannot be demanded and confirmed. Thus it has been consistently held that demand cannot be raised on the basis of the difference between ST-3 and 26AS/ITR returns hence on this issue alone the demand is set asie. Liability to pay service tax - HELD THAT - The appellant has rendered services to body corporate and vide Notification No. 30/2012-S.T. dated 20.06.2012 the taxable services provided by the GTA in respect of Transportation of goods by road where the person is liable to pay freight is body corporate established by or under any law then the liability to pay service tax in such cases will be on the body corporate receiving GTA service by way of reverse charge mechanism and it is found that the most of the companies to whom the appellant has rendered the services are body corporates and therefore service tax cannot be demanded from the appellant. Further it is found that the services rendered to other GTA are exempted from the payment of service tax as GTA are also exempted from payment of service tax as per the entry 22 of the Notification No. 25/2012-ST dated 20.06.2012 because both the conditions which are required to be satisfied are satisfied by the appellant. Name of the appellant appearing in Form 26AS - HELD THAT - In the present case during the relevant period the rates of tax has been changed and the computation of service tax made by the Department is incorrect. Further it is found that the Department has wrongly applied best judgment method for computation of demand from April 17 to June 17. Once the appellant has duly filed the ST-3 returns during the relevant period therefore the question of invoking the best judgment method is not warranted. Failure to extend cum-tax benefit to the appellant - HELD THAT - The Department has failed to extend cum-tax benefit to the appellant which the appellant was entitled in view of Section 67(2) of the Act. Extended period of limitation - HELD THAT - The show cause notice was issued on 24.12.2020 and the same was received by the appellant on 01.01.2021 it is also noted that the appellant was regularly filing the ST-3 returns and the Department was aware of the fact that the appellant is providing GTA service. The appellant was under a bonafide belief that they are not liable to pay the service tax on GTA service and therefore suppression cannot be alleged by the Department on the part of the appellant in order to invoke the extended period of limitation. Conclusion - i) The demand cannot be raised on the basis of the difference between ST-3 and 26AS/ITR returns. ii) The services rendered to other GTA are exempted from the payment of service tax as GTA are also exempted from payment of service tax as per the entry 22 of the Notification No. 25/2012-ST dated 20.06.2012 because both the conditions which are required to be satisfied are satisfied by the appellant. iii) Once the appellant has duly filed the ST-3 returns during the relevant period therefore the question of invoking the best judgment method is not warranted. iv) The Department has failed to extend cum-tax benefit to the appellant which the appellant was entitled in view of Section 67(2) of the Act. v) The appellant was under a bonafide belief that they are not liable to pay the service tax on GTA service and therefore suppression cannot be alleged by the Department on the part of the appellant in order to invoke the extended period of limitation. The impugned order is not sustainable in law on merits as well as on limitation - Appeal allowed.

Summary

The core legal questions considered in this appeal are:

1. Whether a demand for service tax can be sustained solely on the basis of discrepancies between figures reported in ST-3 returns and those reflected in Form 26AS and Income Tax Returns (ITR).

2. Whether the appellant is liable to pay service tax on Goods Transport Agency (GTA) services rendered to body corporates and other GTAs, considering the provisions of reverse charge mechanism and applicable exemptions.

3. Whether the demand computation by the Department is correct, including the application of service tax rates, abatement, and the use of the best judgment assessment method.

4. Whether the extended period of limitation for issuing the demand notice was rightly invoked by the Department.

Issue 1: Validity of Demand Based on Discrepancies Between ST-3 and 26AS/ITR Data

The relevant legal framework includes Section 66B and Section 67 of the Finance Act, 1994, which govern the levy and valuation of service tax, and Section 65B defining taxable services. The Tribunal relied on binding precedents, including decisions where it was held that service tax demand cannot be raised merely on the basis of mismatch between ST-3 returns and other statutory returns such as Form 26AS or ITR, without clear identification of the service provider, service recipient, and consideration received.

The Court noted that the Department issued a show cause notice based on such mismatch and invoked the extended period of limitation. However, the appellant had filed replies which were not considered, and the original order was passed ex-parte on the erroneous ground that no reply or hearing was sought.

Key findings include that the demand was not supported by evidence proving that the differential amount related to a taxable service rendered by the appellant to a specific recipient. The Tribunal emphasized that service tax can only be levied where the taxable service is clearly identified, along with the recipient and consideration. The Tribunal quoted prior orders which held that "it is not open for the Department to raise demands on the basis of other statutory returns like Income Tax Returns or balance sheets without proving that such service has been rendered by the assessee and consideration thereof has been received." Further, it was highlighted that no demand can be raised on notional income.

The Tribunal concluded that the Department failed to carry out the necessary scrutiny to identify taxable services and their correct valuation before raising the demand. Therefore, the demand solely based on data discrepancies was set aside.

Issue 2: Liability to Pay Service Tax on GTA Services Rendered to Body Corporates and Other GTAs

The legal framework includes Notification No. 30/2012-S.T. dated 20.06.2012 which prescribes the reverse charge mechanism (RCM) on GTA services provided to body corporates, and Notification No. 25/2012-ST which exempts services provided to other GTAs under certain conditions.

The appellant contended that most services were rendered to body corporates, which under the RCM are liable to pay service tax, not the service provider. The appellant also submitted that the recipients qualified as 'body corporate' under the Companies Act, 2013. Further, services provided to other GTAs were exempt under entry 22 of Notification No. 25/2012-ST, subject to conditions that the service is by way of giving on hire a means of transportation of goods and that the recipient is a GTA.

The Tribunal found that these conditions were satisfied and that the appellant was not liable to pay service tax on these services. The Tribunal accepted that the appellant had provided vehicles on hire to other GTAs and that the status of these GTAs could be verified through TAN numbers and consignment notes.

Thus, the Tribunal held that the demand for service tax on these services was not sustainable as the liability rested on the service recipients under the reverse charge mechanism or the services were exempt.

Issue 3: Correctness of Demand Computation, Application of Abatement, and Use of Best Judgment Assessment

The appellant argued that the Department incorrectly computed the demand, failing to apply the correct service tax rates applicable during different periods and ignoring the abatement of 70% available under Notification No. 26/2012-ST for GTA services. The appellant also submitted that no Cenvat credit was availed, entitling it to such abatement.

Further, the appellant contended that the Department wrongly invoked the best judgment assessment method for the period April 2017 to June 2017, despite the appellant having filed ST-3 returns for that period.

The Tribunal agreed with the appellant, noting that the Department failed to apply the correct rates and abatement provisions. It also held that best judgment assessment was not warranted when returns were duly filed. The Tribunal cited precedents supporting the entitlement to abatement and proper computation of service tax liability.

Additionally, the Tribunal observed that the Department failed to extend the cum-tax benefit under Section 67(2) of the Finance Act, which the appellant was entitled to.

Issue 4: Invocation of Extended Period of Limitation

The show cause notice was issued on 24.12.2020 and received by the appellant on 01.01.2021. The appellant had been regularly filing ST-3 returns and was under bona fide belief that GTA services were not liable to service tax, based on the reverse charge mechanism and exemptions.

The Tribunal referred to judicial precedents establishing that extended period of limitation cannot be invoked where there is no suppression or fraud by the appellant and where the appellant has acted in good faith. Since the appellant had filed returns and there was no concealment, the extended period of limitation was not applicable.

The Tribunal also addressed the issue of the appellant's name appearing in Form 26AS as a TDS deductor due to an accounting error, clarifying that a proprietorship firm and its proprietor are one and the same legal entity. Therefore, no service can be rendered by the proprietor to himself, and no service tax liability arises on such transactions.

In conclusion, the Tribunal set aside the impugned order on both merits and limitation grounds, allowing the appeal with consequential relief. The Tribunal underscored the principle that demand of service tax requires clear identification of taxable service, service provider, recipient, and consideration, and cannot be based merely on mismatches in statutory returns. It further confirmed the applicability of reverse charge mechanism and exemptions for GTA services rendered to body corporates and other GTAs, the entitlement to abatement, and the necessity of correct computation of tax liability.