TMI Blog2015 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... - There is no material available on record that the Central Excise Officers had made any inquiry of the property shown in the income tax returns and from the Income Tax Department in respect of such Income Tax returns. Hence, we are unable to accept the clubbing of the income of the other relatives of the appellant as fees on the basis of the Income Tax returns. The other aspect of this matter is that while clubbing the income of the relatives with the appellant, no show cause notice was issued to the relatives. The relatives are all independent existence, not disputed by the Department. The Adjudicating authority should not pre-determine the issue, without issuing show cause to the relatives. - Decided in favor of assessee. Determination of taxable turnover - Held that:- It is noticed that the taxable value was determined on the basis of three sources (a) Fees collected (as per computer print out Pages taken out at the time of search) (b) Fees collected (as per details provided by the appellant vide Annexure A , B and C (fees receipt ledger) letter dated 04.05.2012 and (c) Fees collected/ income (by clubbing the income shown in the income tax return of the 13 persons/firm). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant during investigation. 2. A show cause notice dated 02.07.2012 was issued proposing demand of service tax amounting to ₹ 57,03,113/- alongwith interest for the period from 01.4.2007 to 31.03.2011 and to impose penalty under Section 76, 77 and 78 of the Finance Act, 1994 and also to appropriate an amount of ₹ 26,57,344/-, as paid by the appellant during investigation. The adjudicating authority confirmed the demand of service tax alongwith interest and imposed penalties under the category of Commercial Training or Coaching Services . The amount deposited during investigation was appropriated by the Adjudicating authority. 3. The learned Advocate on behalf of the appellant submits that the services rendered by them would cover within the scope of exemption Notification No. 24/2004-ST dated 10.09.2004 as Vocational Training Institute. He further submits that the demand was raised by clubbing the income of appellant s relatives, such as, father, mother, wife, brothers etc., as fees of coaching classes, who are all separate income tax assessees. It is submitted that all the relatives were filing income tax returns regularly under the Income Tax Act. Incomes of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant s relatives. Several summons were issued, but none of the relatives appeared before the investigating officer and therefore, the income of the said relatives were clubbed with income of the appellant. It is further submitted that the appellant also avoided to appear before the investigating officers initially and after a compliant was filed before the competent authority, the appellant appeared before the investigating officers. He submits that the evidence in the nature of income tax returns of the relatives are corroborating with the appellant s Diary, which are fees for coaching classes. The relatives had not appeared before the investigating officers, so, it is to be considered as conclusive piece of evidence. The adjudicating authority rightly clubbed the income of the appellant s relative with the appellant s income to determine taxable value and confirmed the demand of tax. It is submitted that the appellant is Chartered Accountant and knowingly and wilfully had not paid the tax and therefore, extended period of limitation would be invoked and imposition of various penalties are warranted. 5. After hearing both the sides and on perusal of the records, we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that there are several coaching centres in the country for admission of joint entrance examination for Engineering Medical, UPSC, SSC etc. which can not be treated as vocational training institute. 6. The learned Advocate strongly relied upon the decision of the Tribunal in the case of Pasha Educational Training Inst. (supra). In that case, the appellants were providing training on various fields, such as, Insurance Agents for various Insurance Companies. The Tribunal observed that this definition should not be interpreted in a very narrow sense. After the comprehensive training given by the appellant, enables the trainees to appear in the examination conducted of Insurance Regulatory Development Authority (IRDA). The appellants institute was recognised by IRDA. In such a situation, the Tribunal held that the training imparted should be considered a vocational training. In the present case, the appellant s institute is not recognised for imparting coaching by the Institute of Chartered Accountants India and therefore, the said case law would not applicable in the facts of this case. So, the appellant is not eligible for the benefit of exemption notification as vocational tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rent Income, other income, Sales, Stitching Designing income, in their income tax return. Summons were issued to the said persons and nobody turned up and therefore, the income (except salary income, interest, shares, mutual fund income, PPF, GPF, Fixed Deposit interest income etc.) shown in the income tax return and all these incomes have been considered as fees receipts from coaching classes by the appellant and the incomes of the relatives were clubbed with the appellant s income for the purpose of determining taxable value. It is also observed that the appellant and his relatives have failed to produce documentary proof of source of their income and purported documents like fees receipt, ledger of relatives, thus there is no other way for the department except to conclude the investigation by considering the income persons as the fees receipt by the appellant for coaching classes. 9. We are unable to accept the findings of the adjudicating authority. On perusal of the Income Tax return of Ms. Yashvina Jayantilal Kapadia, we find that the assessee had declared income from house property in respect of property at B-207, Tirupati Plaza, Surat, Gujarat and B-208, Tirupati Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal on identical issue as under: (a) S.K.N. Gas Appliances vs. CCE, New Delhi 2000 (120) ELT 732 (Tribunal) (b) Ramsay Pharma (P) Limited vs. CCE, Allahabad 2001 (127) ELT 789 (Tri. Del.) (c) Premier Printers vs. CCE, Cochin 2000 (126) ELT 788 (Tri.) (d) Shree Krishna Minerals vs. CCE, Hyderabad 2005 (190) ELT 251 (Tri. Bang.) (e) Copier Force India Limited vs. CCE, Chennai 2008 (231) ELT 224 (Tri. Chennai) (f) Southern Plywoods vs. CCE (Cochin) 2009 (243) ELT 693 (Tri. Bang.) (g) Asian Industries vs. CCE, Delhi 2002 (139) ELT 391 (Tri. Del.) (h) CCE, Jaipur vs. Sethia Foods 2003 (156) ELT 395 (Tri. Del.) (i) Shiplachem vs. CCE, Indore 2005 (187) ELT 360 (Tri. Del.) (j) Velmurugan Engineering vs. CCE, Coimbatore 2005 (187) ELT 371 (Tri.Chennai) (k) Sri Chakra Cements Limited vs. CCE, Guntur 2007 (217) ELT 255 (Tri. Bang.) (l) CCE, Pune vs. Arofine Polymers Limited 2007 (214) ELT 241 (Tri. Mum.) 12. The Hon ble Calcutta High Court in the case of CCE, Kolkata-II vs. Diamond Scaffolding Company 2011 (274) ELT 10 (Cal.) held as under:- 8 In respect of the second point, i.e., clubbing of clearance, the Tribunal further came to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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