2025 (6) TMI 449 - AT - Service Tax

Classification of services - manpower supply services or maintenance and repair services - validity of demand raised by the Department based on Income Tax Returns and Form 26AS - suppression of facts or not - invocation of extended period of limitation - HELD THAT - The agreement clearly is for works of maintenance of 11KV feeder . On this work the Appellant is getting consideration of Rs.1, 77, 800/- per month. Though the Appellant is agreeing to provide manpower the contract is basically only for maintenance and repair service. In case of manpower service the payment is based on the per day rate for each and every person deployed plus the percentage of commission payable to the service provider which is not the case here. Therefore the submissions of the Appellant that they are providing manpower services rejected. Accordingly on merits their case fails. However there are force in their arguments that the Department has not brought in any specific evidence to the effect that they have indulged in any suppression. The Income received has been declared by them in their Income Tax Returns for which Form 26AS has been issued. The Department has quantified demand based on data under Form 26AS only. On identical issue this Bench in the case of M/s Pappu Crane Service 2019 (7) TMI 1885 - CESTAT ALLAHABAD has held that the revenue s reliance upon profit and loss account are irrelevant for the purpose of confirmation of tax. The impugned order is set aside - appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal are:

• Whether the services provided by the Appellant constitute 'manpower supply services' or 'maintenance and repair services' for the purpose of service tax liability.
• Whether the demand raised by the Department based on Income Tax Returns and Form 26AS is valid and sustainable, particularly in light of the limitation period and the absence of suppression or concealment by the Appellant.
• Whether the invocation of extended period provisions for raising the demand is justified.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Nature of Services Provided - Manpower Supply vs. Maintenance and Repair Services

Relevant Legal Framework and Precedents: The classification of services under the Service Tax regime determines the liability to tax and the applicable charging provisions. 'Manpower supply services' typically involve deployment of personnel on a per-day or per-person basis, whereas 'maintenance and repair services' relate to contractual work for upkeep or repair of assets.

Court's Interpretation and Reasoning: The Tribunal examined the agreement submitted by the Appellant, which explicitly described the contract as for the 'works of maintenance of 11KV feeder', with a fixed monthly consideration. The payment structure did not reflect per-person or per-day charges typical of manpower supply contracts but was a lumpsum amount for maintenance work.

Key Evidence and Findings: The agreement and payment terms were pivotal. The Appellant's claim that unskilled workers were merely supplied was contradicted by the contract's language and the nature of the work described.

Application of Law to Facts: Since the contract was essentially for maintenance and repair services, the Tribunal held that the Appellant's activities did not amount to manpower supply services, thereby rejecting the Appellant's contention on this issue.

Treatment of Competing Arguments: The Appellant argued that the workers were unskilled and simply deployed manpower, not performing repair work. The Tribunal found this argument inconsistent with the contract terms and payment structure.

Conclusions: The Appellant's service falls under 'maintenance and repair services' and not 'manpower supply services'. On merits, the Appellant's claim failed.

Issue 2: Validity of Demand Based on Income Tax Returns and Form 26AS and Limitation

Relevant Legal Framework and Precedents: Under service tax law, demand for tax must be raised within the prescribed limitation period unless extended by specific provisions. Reliance solely on Income Tax Returns and Form 26AS for quantification of service tax demand has been held to be insufficient in earlier decisions. The Tribunal referred to its earlier decision in the case of Pappu Crane Service, where reliance on profit and loss accounts and Form 26AS was held to be improper for confirming service tax demand.

Court's Interpretation and Reasoning: The Tribunal noted that the Department issued the Show Cause Notice based only on the Income Tax Return and Form 26AS data, without bringing any evidence of suppression or concealment by the Appellant. The Appellant had declared the income in their returns and was registered with the Service Tax Department, filing returns regularly.

Key Evidence and Findings: Absence of any evidence of suppression or concealment, and the Department's reliance solely on Form 26AS data for raising demand.

Application of Law to Facts: The Tribunal applied the ratio of the Pappu Crane Service case, where it was held that demands based solely on profit and loss accounts and Form 26AS, raised beyond the normal limitation period, are not sustainable.

Treatment of Competing Arguments: The Revenue contended that extended period provisions were invoked due to the need for detailed verification. The Tribunal found no specific evidence to justify this invocation or to demonstrate suppression by the Appellant.

Conclusions: The demand raised is barred by limitation, and the invocation of extended period provisions is unjustified. The Appellant is entitled to consequential relief.

3. SIGNIFICANT HOLDINGS

The Tribunal held:

"On going through the copy of the agreement provided by the Appellant, I find that the agreement clearly is for 'works of maintenance of 11KV feeder'. On this work, the Appellant is getting consideration of Rs.1,77,800/- per month. Though the Appellant is agreeing to provide manpower, the contract is basically only for maintenance and repair service. In case of manpower service the payment is based on the per day rate for each and every person deployed plus the percentage of commission payable to the service provider, which is not the case here. Therefore, I reject the submissions of the Appellant that they are providing manpower services. Accordingly, on merits their case fails."

"However, I find force in their arguments that the Department has not brought in any specific evidence to the effect that they have indulged in any suppression. The Income received has been declared by them in their Income Tax Returns for which Form 26AS has been issued. The Department has quantified demand based on data under Form 26AS only."

"Inasmuch as, the revenue's entire case is based upon the profit and loss accounts read with the 26AS Form and the service tax stands confirmed by invoking the longer period of limitation, we are of the view that the impugned order of Commissioner (Appeals) is not sustainable on limitation itself. Accordingly, we set aside the same and allow the appeal with consequential relief to the appellant."

Core principles established include:

• The nature of service is to be determined primarily by the terms of the contract and the payment structure, not merely by the label or assertion of the parties.
• Reliance solely on Income Tax Returns and Form 26AS for raising service tax demand, especially beyond the limitation period, is improper without evidence of suppression or concealment.
• Extended period provisions for demand can only be invoked upon specific evidence of suppression or concealment, which was absent here.

Final determinations:

• The Appellant's services are maintenance and repair services, not manpower supply services.
• The demand raised on the basis of Income Tax Returns and Form 26AS is barred by limitation.
• The impugned order confirming demand is set aside on the ground of limitation, entitling the Appellant to consequential relief.