TMI Blog2024 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed by comparing the ST -3 returns with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the provision of taxable service. As it is the Revenue authorities who have made the allegations of on payment of tax, and as such, the onus to prove the said allegation lies with them to substantiate the allegations. In the case of PRINCIPAL COMMISSIONER CGST CENTRAL EXCISE, MUMBAI EAST VERSUS M/S. SBI LIFE INSURANCE COMPANY LTD. [ 2024 (1) TMI 1161 - CESTAT MUMBAI] , the Tribunal held that demand/penalty on the basis of difference between ST-3 Returns and Income tax returns of any period, without further examination to establish that the difference is on account consideration received towards discharge of services, cannot be sustained. Thus, mere difference in figures appearing in the trial balance as compared to the ST 3 returns without any corroborative evidence that taxable services had indeed been provided by the appellant cannot be upheld - Further, it is a fact on record that the appellant was filing his ST-3 returns regularly. The Department did not raise any query or seek any clarification from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such a case, the burden of proof lies on the Revenue as the allegations of short payment/non-payment of service tax has been made on the appellant, based purely on the differential figures and alleging the same to be income against taxable services . 3.1 He further submitted that the difference in the figures as reported in the Ledger Accounts and those as appearing in the ST-3 returns are inherent, and was well within the knowledge of the Department, as for the period, prior to the period in dispute, no demand was ever raised on such differential figures. In this connection, he relied upon the following judgements:- Go Bindas Entertainment Pvt. Ltd. Vs. Commissioner of S.T., Noida, 2019 (27) GSTL 397 (Tri-All.), M/s Kush Constructions vs. CGST Nachin, ZTI, Kanpur, 2019-TIOL-1757-CESTAT-ALL 3.2 On invocation of Rule 6(4A) of the Service Tax Rules for Financial Year 2015- 16, the Learned Counsel highlighted that as per the impugned OIO dated 11.01.2023, the value liable to tax under the service heads Legal Services is Rs. 7,83,172/-, Security Services is Rs. 3,87,206 whereas under the service head Works Contract the appellant has shown excess taxable va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The impugned order is set aside and the appeal is allowed Thus, the learned Counsel submitted that as the entire demand proposed in the SCN dated 29.12.2020 fell within the extended period of limitation, in view of the decisions mentioned supra, the same is liable to be set aside. 3.4 The learned Counsel also submitted that invocation of extended period of limitation and penalty under Section 78 of the Finance Act 1994 is bad in law, as the entire demand proposed on differential figures of Ledger Accounts as appearing in the Trial Balance and as reported in ST-3 without even specifying the reasons as to how such differential figure represents the taxable services on which due service tax, as alleged, has not been paid. On such vague computation, the non-disclosure of such differential figures in ST-3 returns filed has been alleged as suppression of facts. Further, no positive evidence of suppression of facts coupled with intention to evade the payment of service tax is discernible from the show cause notice. For these submissions, he relied upon the following judgements:- M/s Vandana Global vs. Commissioner (Appeals) CGST, Central Excise Customs, Raipur in Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces). I find that in some cases, the transaction values arrived at as per trial balance are on the higher side as compared to transaction values shown in corresponding ST 3 returns to the extent as mentioned in the reconciliation statements. These differences between the two figures are not supported with any reason/explanations. Evidently, the notice a have failed to provide any explanation of the said differences, but still persists following the process of reconciliation, as discussed above. Further, I find that in remaining cases the transaction values arrived at as per trial balance are less than the transaction values shown in corresponding ST 3 returns, which has resulted in excess payment of tax. In this context, it would be expedient to go through the provisions of rule 6(4A) of the service tax rules, 1994, .. 21.1. From the above provisions, it is clear that any amount of service tax paid in excess in a month or quarter to be adjusted in the succeeding month or quarter within the same year only. In the instant case, as per the reconciliation statements, the excess payment of taxes discussed above are related to a year, whereas the short payment tax are related t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under: 1. We note that without further examining the reasons for the difference in two, revenue has raised the demand of the basis of difference between the two. We note that revenue cannot raise the demand on the basis of such difference without examining the reasons for the said difference and without establishing that the entire amount received by the appellant as reflected in the said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services. We, therefore, do not find the said show cause notice to be sustainable. In view of the same is set aside the impugned order and allow the appeal. 6.1.1 In the case of Principal Commissioner, CGST vs. SBI Life Insurance Company Limited (2024 TIOL 202 CESTAT Mumbai), the Tribunal held that demand/penalty on the basis of difference between ST-3 Returns and Income tax returns of any period, without further examination to establish that the difference is on account consideration received towards discharge of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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