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TMI Blog2023 (7) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents in support thereof viz. Balance Sheet, Profit and Loss Account, Income tax Return, Form 26AS .etc. However Appellant have neither submitted the details nor submitted explanation for the vast difference noticed between service tax return and Income Tax Return. Therefore, the Service tax liability of Rs. 23,63,40,566/- was worked out on the basis of income mentioned in ITR/Form 26AS, which were shared by Income tax Department. The said Income was considered as the total taxable value in order to ascertain the service tax liability under Section 67 of the Finance Act, 1994. Accordingly, show cause notice dated 21-10-2020 was issued proposing the Service tax demand along with interest and penalty. In adjudication, the Learned Commissioner vide impugned Order-in-Original confirmed the demand of Service Tax of Rs. 22,91,53,687/- and dropped the Service Tax demand of Rs. 13,57,00,973/-. He also imposed penalty of Rs. 22,91,53,687/- under Section 78 of the Act and penalty of Rs. 10,000/- each under Section 77(1)(C) and 77(2) of the Finance Act, 1994. Aggrieved by the impugned order-in-original the present Appeal has been filed. 3. Shri Vikash Agarwal, learned Chartered Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other hand the Ld. Adjudicating authority had made assumptions with regards to certain Ledgers, which represented miscellaneous clients, to be not related to transport of goods by road service, without having observed any adverse information or without any reason recorded in the Order-In-Original. The department and Ld. Adjudicating authority had not found a single document which indicates that, for any particular transaction, the Appellant was not entitled to above exemption, or that reverse charges was not applicable on disputed particular transactions. 3.4 He also submits that the Learned Adjudicating authority in the present matter held that it was difficult to ascertain that whether the recipient was covered or not covered under the specified person listed under the Notification No. 30/2012-ST which is related to Reverse charge mechanism. The demand was confirmed only on the basis of doubt and without any substance on records or reasons to have any such doubt. 3.5 He also argued that entire service tax demand was confirmed by the Ld. Adjudicating authority based on the data received from CBDT by assuming that appellant provided the taxable services. However department in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords. 5.1 We find that in the present matter for confirmation of service tax demand against appellant revenue relies upon the data shared by the CBDT. The difference in taxable value was worked out by the revenue comparing the income declared by the Appellant in ITR/ Form 26AS vis-à-vis taxable value declared/ disclosed in ST-3 returns. Accordingly, the issue which require to be decided in this matter before us is whether Appellant is liable to pay service tax on such differential value. 5.2 In the present matter when the Service tax is demanded on Income declared before the income tax authorities, it is the responsibility of the department to show that the said income are proceeds of the taxable services and appellant had rendered these services to customers with positive evidences. In the present case department failed to do so. Further on going through the impugned show cause notice we find that the show cause notice does not analyze any taxable activities carried out by the Appellant and whether the same would fall within the definition of any taxable service. It is settled principle of law that unless and until the clear analysis of the activity done by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ground is for confirming demands is that the appellants had shown certain amounts due from the parties in their Income-tax returns and Revenue has proceeded to demand Service Tax on this amount shown in the Balance Sheet. The appellants have relied on large number of judgments which has settled the issue that amounts shown in the Income-tax returns or Balance Sheet are not liable for Service Tax. In view of these judgments, the appellant succeed on this ground also. The impugned order is set aside and the appeal is allowed." In the matter of Calvin Wooding Consulting Ltd. v. Commissioner of C.Ex. Indore - 2007 (7) S.T.R. 411 (Tri. - Del.) = [2007] 9 STT 334 also Tribunal observed as under : 21. The liability of the recipient cannot arise merely from the fact that, the income-tax was deducted at source, which was the requirement of the Income-tax Act, on the recipient who made payment to the foreign supplier. Such a statutory requirement, as exists under the Income-tax law on the person making the payment to deduct tax at source, as a tax collecting agency of the Revenue, does not exist under the provisions of the Service Tax law, and no obligation was cast upon the recipient o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity at Jaipur have no jurisdiction to proceed against the respondent for demanding Service Tax without any evidence of taxable service being provided within their jurisdiction. We find that there is nothing in the grounds of appeal which makes us to interfere with the finding of the learned Commissioner (Appeals). The appeal did not advert to any assertion as to how the Service Tax demand can be made when there is no evidence to any taxable service having been rendered in the Jurisdiction of Rajasthan. No inquiries have been conducted by the Revenue to support their case. As such, we find that present appeal is without merit and accordingly, the same is dismissed" In the matter of Quest Engineers & Consultant Pvt. Ltd. Vs. Commissioner, CGST & C.Ex., Allahabad -2022(58) GSTL 345 (Tri-All.), the CESTAT also held as under: - "12. Appreciating the facts and circumstances, we find that the allegations of Revenue are frivolous, that it was only on enquiry it came to know about the affairs of the appellant, i.e. providing of taxable service in view of the admitted facts that appellant is a registered assessee under the Service Tax provision, and have been filing their returns and pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Kipps Education Centre, Bathinda v. CCE, Chandigarh reported in 2009 (13) S.T.R. 422 (Tri. - Del.), it was held by the Tribunal that income voluntarily disclosed before the income tax authorities could not be added to the taxable value unless there is evidence to prove the same. In this case also, there is no evidence to show that the income disclosed is the part of taxable service. In Para 36 of impugned order Learned Commissioner also admitted the said facts and held as under: "It is also pertinent to mentioned here that the department has not adduced any evidence to substantiate the allegation levelled against M/s CLL other than the difference in taxable value as seen in the ITR & ST-3 Returns filed." 5.6 In view of the above legal position, we are of the view that the demand of services tax is not sustainable on the basis of CBDT data or data provided by the Income tax department. 5.7 Without prejudice, we also find that in the present matter Appellant submitted the documents like sales account, Income Ledger, sample copies of invoices and sample copies of LRs before the Learned Commissioner. The said documents clearly established that the services provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to the above, we find that the Adjudicating Authority also raised dispute that since the appellant have availed the Cenvat credit on the input service they are not eligible for abatement under GTA service. In this regard the appellant has vehemently submitted that Cenvat was availed only with respect to loading and unloading activity, on which Service Tax was duly paid. We find that there is no dispute about the fact that the appellant have discharged the Service Tax on the independent services of loading and unloading, therefore, the credit taken attributed to such service will not affect the eligibility of abatement provided for the service of GTA. Therefore, the contention of the adjudicating authority has no basis accordingly, it cannot be accepted. Assuming, if at all Cenvat is availed on input service for loading and unloading, the said activity being independent and not related to GTA in the present case, the abatement available in respect of GTA will not be affected adversely. 5.12 The impugned order confirmed a small amount of demand based on mention of words "loading and unloading" in narration of Ledger Entry. In this regard we agree with the submission of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the department and the party is in the belief that affixing of label makes no difference, does not make a declaration, there would be no wilful mis-declaration or wilful suppression. If the department felt that the party was not entitled to the benefit of the notification it was for the department to immediately take up the contention that the benefit of the notification was lost. (b) In the case of Continental Foundation Joint Venture Vs. Commissioner of Central Excise Chandigarh-I reported in 2007 (216) ELT 177 (SC) the Apex Court held as under: "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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