TMI Blog2021 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ata for Income Tax - the whole basis of show cause notice is incorrect and/or misconceived. Extended period of limitation - HELD THAT:- The appellant is entitled to exemption under the Notification No. 25/2012-ST under Sl. No. 13(a) of the said notification for providing consulting engineer services in the matter of road construction. When road construction is exempt, every activity is exempt relating to the road construction including consulting engineer services - This Tribunal in M/S LORD KRISHNA REAL INFRA PRIVATE LTD. VERSUS COMMISSIONER OF CUSTOMS, C.E. S.T., NOIDA [ 2019 (2) TMI 1563 - CESTAT ALLAHABAD] has held in other disputed cases, that even the barricade provided on the side of highway, maintaining greenery on the side or middle of highway, construction of any facility, refreshment centre for road users, is also part of the road construction and such activity is also exempt. Even the administrative building constructed by the concessionaire, for construction of the road or highway for administration and collection of toll etc. is part of road. Rent a cab service - Reverse charge mechanism - HELD THAT:- There is no specific allegation as required under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of tax payable by the appellant and interest thereon were confirmed. 6. Being aggrieved, this appeal is preferred. 7. It is submitted that the appellant had rendered consultancy services to M/s NHAI, M/s LEA, M/s EE - Road Construction Road Division - Government of Jharkhand, M/s SA Infrastructure Consultants P. Ltd., and UPHAM International Corporation with respect to the road construction projects undertaken by them. The remuneration received by the appellant for the services so rendered included two parts, namely professional fee , and reimbursement of certain expenses like office supplies, utilities, printing expenses, rent of office set up near the site, office supplies, utilities and communication expenses etc. Tax on the professional fee charged from the customers for consultancy services was paid by the appellant, however, tax on the reimbursements, the appellant has neither charged nor paid service tax. It has been contended that in terms of section 67(1)(i) of the Act it was the intention of the law makers to bring into the tax bracket only the gross amount charged by the service provider for such services provided or to be provided by him, i.e. only the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et and Profit and Loss account. The Tribunal held that since the basis of the calculation of the demand has not been given to the appellants, the proceedings flowing from such a defective show cause notice, are neither legal nor proper. d) Similar view has been confirmed by the Hon ble High Court in the matter of Firm Foundation Vs Pricipal Commissioner wherein the Hon ble High Court set aside the demand of service tax computed on the basis of Profit Loss account of the assessee. The Learned Adjudicating authority has, while confirming the demand in the instant matter by holding that the entire turnover recorded in Form 26AS, as taxable is turnover, and hence, liable to service tax, failed to acknowledge the fact that the allegation made by the department should be supported by cogent evidence. e) The Hon ble Supreme Court in H.P.L. Chemicals Ltd. Vs CCE Chandigarh 2006 (197) ELT 324 (S.C.) held that the department has to adduce proper evidence and discharge burden of proof . f) LSE Securities Ltd. Vs CCE, Ludhiana vide Final Order No. ST/A/363-366/12 (2012-TIOL-593-CESTAT-DEL) held that Burden of proof failed to be discharged by the revenue, to bring the receipt to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for providing the consulting engineer services and have regularly filed the returns and deposited the admitted tax. iii) The period involved is 2011-12 to 2015-16 and the show cause notice was issued on 05.01.2017, invoking the extended period of limitation. iv) The appellant have admittedly paid service tax of ₹ 82,91,173/- during the period of dispute. v) The Revenue have computed the tax liability on the basis of gross turnover as reflected in Form No. 26AS (under the Income Tax provision), which is a document available on the website of Income Tax Department, wherein the data recorded is on cash basis or receipt basis of accounting. Whereas under the provisions of service tax, the tax liability is computed on the basis of accrual on mercantile system of accounting, which is in contrast to the cash basis of accounting. vi) The only allegation in the show cause notice for invocation of extended period of limitation is appellant was not paying service tax within time and have not deposited the statutory return in time and thus have fully suppressed the material facts with intent to evade payment of service tax. vii) It is further alleged that it was only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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