TMI Blog2024 (2) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... es these amounts have been paid by the service recipient - as the investigation is faulty and the show-cause notice has been issued by invoking extended period of limitation, the demand is not sustainable on limitation itself. The impugned demand is not sustainable against the appellant on the basis of the details provided by the Income Tax Department in Form 26AS and the extended period of limitation is not invokable - Appeal allowed. - HON BLE MR.ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Indranil Banerjee Ms.Ankita Mitra , both Advocates for the Appellant Shri S. S. Chattopadhyay , Authorized Representative for the Respondent ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order wherein the demand of Rs.2,60,99,364/- has been confirmed along with interest and various penalties have been imposed on the appellant under Sections 78,70 and 77 of the Finance Act, 1994. 2. The facts of the case are that appellant is a proprietorship concern and had been engaged in providing services such as, supply/renting of passenger vehicles and load carrier vehicles to the Indian Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of its personnel. During the period Ocotber, 2014 to March, 2017, on all the payments made by the Indian Army, the Income Tax was deducted, which was reflected in Form 26AS as for supply of fish, chicken etc. to Indian Army, no service tax is payable as it is an activity of trading. With regard to supply/renting of passenger vehicles and load carrier vehicles to the Indian Army, it is his submission that the said service is exempted from payment of service tax in terms of Notification No.30/2012-ST dated 20.06.2012 under negative list regime as the appellant has not issued any consignment notes. He submits that the service involved herein is transport agency service. For the period April, 2017 to June, 2017, the appellant contended that the total amount of Rs.2,75,876/- has been received by the appellant, which is exempted from payment of service tax being less than Rs.10.00 lakhs threshold limit to demand service tax. Therefore, on that amount, the appellant is not liable to pay service tax. 3.1 He further submitted that the proceedings were initiated against the appellant in year 2015 itself and for the period October, 2014 to June, 2017, a show-cause notice came to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant also joined the adjudication proceedings through virtual hearing, but in the show-cause notice, the demand has been raised based only on the basis of Form 26AS issued to them. Therefore, the issue arises whether the demand can be raised on the basis of Form 26AS supplied by the Income Tax Department or not ? The said issue has also been examined by this Tribunal in the case of Pijush Sharma (supra), wherein this Tribunal has held as under : 10. In this case, the appellant has contended that the demand has been raised on the basis of Form-26AS supplied by the Income Tax department. Although summons were issued to the appellant and the appellant did not join the proceedings, therefore, the demand has been raised on the basis of Form-26AS. Admittedly, no investigation has been conducted in this case at the end of the appellant by the adjudicating authority. Being the appellant a registered service provider and filing their Service Tax returns, in that circumstances, the demand cannot be raised on the basis of Form-26AS obtained from the Income Tax Department. Further, the adjudication order has been passed ex parte. 11. Moreover, the show cause notice has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis for arriving at the assessable value. He has stated that they had elaborated before the Original Authority various reasons for discrepancies in the figures arrived at presuming the considerations received by M/s. Sharma on the basis of such TDS Certificates and the figures in the returns. He has further relied upon this Tribunal s Final Order in the case of Alpa Management Consultants P. Ltd. v. Commissioner of Service Tax, Bangalore reported in 2007 (6) S.T.R. 181 (Tri. - Bangalore). He submitted that this Tribunal in the said case has held that demands, solely based on the income-tax returns for liability of Service Tax under Finance Act, 1994 is not sustainable. In respect of appeal filed by Revenue ld. counsel for M/s. Sharma has contended that the grounds of appeal are travelling beyond the Show Cause Notice and therefore that is not sustainable. He has further elaborated that cargo handling was brought in as ground by Revenue in the appeal filed by Revenue whereas that issuewas not at all dealt with in the Show Cause Notices dated 20- 4-2009 13-10-2009. 4. Heard the ld. DR, who has presented the grounds of appeal in appeal filed by Revenue. 5. Having con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow the principles of natural justice and direct the appellant to produce the original documents on the basis of which Cenvat credit was availed by the appellant, in case he had doubt about the availability of original documents with the appellant. The order of Original Authority presuming that the appellant did not have original documents is not sustainable in respect of availment of Cenvat credit. Further, there was no proposal in the said show cause notice to deny said Cenvat credit. Further, we find that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant. Charges of short payment of service tax to the tune of Rs.8 crores were made against the appellant. It was possible for Revenue to know the transactions between other parties appellant from form 26AS. Revenue could have investigated into the nature of such transactions should have established that the said transactions were in respect of provision of said service. Then alone the charges of short payment of Service Tax would have sustained. We find that Final Order of this Tribunal in the case of Sharma Fabricators Pvt. Ltd. (supra) is squarely applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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