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TMI Blog2022 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... eby he ordered payment of Service Tax (incl Cess) of Rs. 10,17,623/- along with applicable interest and imposed equal penalty for the period from April 2014 to March 2017. 2. Briefly stated, the facts of the case are that the appellant provided taxable service of renting immoveable property to various tenants. Third-Party data was received from CBIC Delhi by Dibrugarh Commissionerate regarding the appellant's mismatch of income reflected in Form 26AS and ST- 3 Returns. During investigation and in response to queries raised by the Department, the appellant submitted various documents and information by letters dated 12.05.2017 and 05.06.2017. Parallel investigation for the same period was also initiated by GST Intelligence Guwahati, so the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inflation in Form 26AS as compared to ST3 Returns, and these service recipients, namely M/s JRD Jewels Pvt Ltd, M/s Sohum Shoppe Pvt Ltd, Shree Krishna and ATC Associates, Chandrabali Commercial(I) Pvt Ltd also confirmed this fact by giving certificates of their own. 4. Learned Counsel for the appellant also states that regarding the service tax demand on the appellant on RCM basis, as seen from Reconciliation as well as from the Invoices, Service Tax was already collected by Service Provider and paid to the Department and therefore cannot be demanded again. Also, some of these Service Providers for which tax is being demanded by the Department on RCM basis are Private Limited Companies or Limited Companies, viz. Blue Star Ltd, Kone Elevat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears can only be invoked as per the proviso to Section 73(1). Therefore the impugned order is beyond the SCN, as held by the Tribunal in Satish Kumar & Co vs Commissioner of Central Excise Nagpur 2019(22) GSTL 269 , that, "As regard limitation, we observe that the show cause notice in the main body does not make any allegation that the appellant have suppressed the fact or fraud or collusion or misstatement etc. and even in the proposal also the demand was raised under Section 73 and proviso to Section 73(1) which requires to demand for the longer period was not invoked. Therefore the adjudicating authority confirming the demand for the extended period is clearly beyond the show cause notice, hence the demand for the longer period could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F.No 137/314/2012 which put a duty on the assessing officer to effectively scrutinize the returns at the preliminary stage. The same is supported by Gannon Dunkerley & Co Ltd vs CST(Adjudication) Delhi 2021(47)GSTL 35 (Tri-Del). * It is trite law that extended period cannot be invoked for part of the demand raised on RCM basis because it is a revenue neutral situation as the appellant would be eligible for credit if it paid tax, as confirmed by the Tribunal in Universal Dredging & Reclamation Corporation Ltd vs Commissioner of CGST & Central Excise Madurai 2021(44) GSTL 401, (Tribunal Chennai) wherein it was held that "Undisputedly, the demand has been raised on reverse charge basis and the appellant would be eligible for credit, if they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, on merits as well as on limitation, the Learned Counsel for appellant prays that no Service tax be demanded, and subsequently no interest and penalty be imposed. 8. The Learned D.R justifies and reiterates the findings of the impugned order of the Ld Commissioner (Appeals) and accordingly prays that the appeal be dismissed. 9. Heard both sides through video conferencing and perused the appeal records. 10. I find force in the contention of the Ld Counsel of the appellant that CA Certified Reconciliation of ST-3 Returns and Form 26AS clearly shows that inflated figure in Form 26AS is because some Service Recipients deducted TDS not only on the rent/commission but also on the Service Tax component. The Service Recipients also confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide F.No 137/314/2012 and therefore no suppression can be alleged for this period. I also find that as held in Gannon Dunkerley & Co Ltd (supra), since the appellant was filing all ST-3 Returns regularly, the Department's stand that it could examine the factual position only on receiving details of Form 26AS cannot be sustained because CBEC Circular No. 113/7/2009-S.T., dated 23-4-2009 vide F.No. 137/158/2008-CX. 4 and CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012 categorically puts duty on the Assessing Officer to effectively scrutinize the returns at the preliminary stage. I also find that proviso to Section 73(1) has not been invoked in the operative part of the SCN and therefore extended period cannot be invoked ..... X X X X Extracts X X X X X X X X Extracts X X X X
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