TMI Blog2024 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... sible as provided under the respective Statute. Further, it was also held that there cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps, and it has to be decided on merits of the case after taking note of the peculiar background facts of each of the case. It is a well settled principle that the statue must be read as a whole in its context to understand its true meaning and intent. When the question arises as to the meaning of a certain provision in the statue, it is not only legitimate but proper to read that provision in its context. The context here means, the statute as a whole, the previous state of the law, other statues pari materia, the general scope of the statue and the mischief that it was intended to remedy - when an issue had not been examined in detail by the original authority, and when such matter was preferred in an appeal before the Commissioner (Appeals), in case if such appeal is filed beyond the time limit provided in law, and the first appellate authority is unable to entertain the appeal on account of timebar, the course of option available to the person aggrieved is to appeal before the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants ), assailing the Order-in-Appeal No. PUN-CTAPPII- 000-044-2020-21 dated 30.09.2020 (herein after, referred to as the impugned order ) passed by the learned Principal Commissioner (Appeal-II), Central Tax, Pune. 2. Briefly stated, the facts of the case are that the appellants herein is a proprietary firm engaged in construction of residential complexes, works contract etc. and for the purpose of providing taxable services they have registered with the jurisdictional service tax authorities. During verification of the data provided by third party i.e., Income Tax Department in the form of 26AS statement, it was observed that the appellants have shown income as per ITR/TDS for the year 2012-2013 as Rs. 6,36,27,376/- whereas value of services on which service tax is payable as per Max-ST3 returns is shown as Rs. 5,61,14,132/-, thereby resulting in difference of Rs. 69,35,707/- on which service tax has not been paid. According by the Department had issued Show Cause Notice (SCN) demanding service tax on differential value of Rs. 69,35,707/- under Section 73(1) of the Finance Act, 1994 along with interest and proposing penalties under Section 70, 77 and 78 ibid. The said S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have been duly audited by the Pune-III, Service Tax Cell, Group-I audit officers covering the period July, 2010 to March, 2014, and the differential amount of service tax demanded have been fully paid by the appellants, in compliance with the Audit Report No.ST/104/2014-15, which has also been discussed in the MCM meeting held on 28.08.2014 and such tax payments have been accepted and the objections raised by the Department was closed. The learned Advocate pleaded that the during the proceedings before the authorities below, they had explained the situation that there was ambiguity in calculation of taxable turnover for the purpose of ST-3 returns, and when the records were audited by the Department, the correct amount of taxable value of services were identified and they have paid service tax accordingly. However these facts have not been considered by the authorities below, on the merits of the case. The show cause proceedings have simply demanded the service tax on the basis of highest difference between the value of services declared in the ITR for income tax purpose and the value of services indicated in ST-3 returns filed, without considering the explanations offered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapter, made before the date on which the Finance Bill, 2012 receives the assent of the President: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months : (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed. xx xx xx xx xx (4) Save as provided in the National Tax Tribunal Act, 2005, orders passed by the Appellate Tribunal on appeal shall be final. 6.3 From plain reading of the above legal provisions, it transpires that for the period relating to the present case in hand i.e., subsequent to amendment introduced through the Finance Bill, 2012, the Commissioner (Appeals) in an appeal filed before him could consider a case for hearing and determination of the appeal for passing an order, if the same is filed within a period of two months from the date of receipt of the order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 9 . Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C. s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10 . Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstone supra, is extracted below: It is a settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word phrase or sentence is to be considered in the light of the general purpose and object of the statue. Thus, we are of the considered view that when an issue had not been examined in detail by the original authority, and when such matter was preferred in an appeal before the Commissioner (Appeals), in case if such appeal is filed beyond the time limit provided in law, and the first appellate authority is unable to entertain the appeal on account of timebar, the course of option available to the person aggrieved is to appeal before the next appellate authority i.e., the Tribunal in this case, who could consider such a case in terms of the legal provisions of the respective Acts and pass such order as it thinks fit, in confirming, modifying or annulling the decision or order appealed against or refer the case back to the authority which passed such order or direct for fresh adjudication of the case. 6.7 In this context, we are of the considered view that in the factual matrix of the case, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Loss account and has duly been recorded in the books of account. Since demand has been raised on the basis of the differences in balance sheet and ST-3 (gross income vis- -vis the income on which service tax paid in ST-3 returns), the second demand on the basis of the reconciliation of the same with ST- 3 Returns filed by the appellant shall not be proper and correct as it would be superfluous and would lead to duplication of demand. Thus, demand is not sustainable. 29 . The department has challenged the dropping of demand contending that the failed to appreciate the importance of Form 26AS in assessing the service tax liability. It has been repeatedly held that no demand can sustain merely on the basis of the difference in figures in ST-3 and Form 26AS as there is difference in the methodology in preparing both the records and Form No. 26AS is not a statutory document for determining the taxable turnover under the service tax provision. In this connection reliance can be placed on the decisions of the Tribunal in Quest Engineers Consultant Pvt. Ltd. v. Commissioner, Central Goods Service Tax and Central Excise 2021 (10) TMI 96- CESTAT Allahabad and Krishna Construction Co. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020-ST, has directed the field formations that while analysing ITR-TDS data received from Income Tax, a reconciliation statement has to be sought from the taxpayer for the difference and whether the service income earned by them for the corresponding period is attributable to any of the negative list services specified in Section 66D of the Finance Act, 1994 or exempt from payment of Service Tax, due to any reason. It was further reiterated that demand notices may not be issued indiscriminately based on the difference between the ITR-TDS taxable value and the taxable value in Service Tax Returns. It is once again reiterated that instructions of the Board to issue show cause notices based on the difference in ITR-TDS data and service tax returns only after proper verification of facts, may be followed diligently. Pr. Chief Commissioner /Chief Commissioner (s) may devise a suitable mechanism to monitor and prevent issue of indiscriminate show cause notices. Needless to mention that in all such cases where the notices have already been issued, adjudicating authorities are expected to pass a judicious order after proper appreciation of facts and submission of the noticee. 8.2 In the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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