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TMI Blog2024 (7) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Finance Act of 1994 ('the Act' for short). 3. Respondent No.2, based on the income tax returns data supplied by the CBDT, came to the conclusion that petitioner was liable to pay service tax for the financial year 2015-16 but was not registered with the Service Tax Department and hence he was the party short listed for verification of service tax liability. 4. Petitioner had declared total gross receipt in their ITR for financial year 2015-16 from services to be Rs. 70,48,100/- but did not obtain service tax registration and pay any service tax. The Range Superintendent, Gokak Range by his letter dated 24.09.2019, and letter dated 06.11.2020, requested the petitioner to furnish the documents, explain the reasons for non-declaration of taxable services for the financial year 2015-16 for the amount of Rs. 70,48,100/-. The petitioner, vide letter dated 18.11.2021 replied by stating that he was involved in the drilling of bore wells for agricultural work and done the Government work to Government departments and hence was under the impression that he is exempted from service tax for agricultural sector, hence did not obtain service tax number and pay any service tax. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort levied or erroneously refunded could be issued within 30 months from the relevant date, whereby a notice is served to the person chargeable with the service tax. In this case, the same is not done within 30 months. An extended period is provided by virtue of the proviso to Section 73 (1) of the Act, which says that where it falls within the category of the proviso A to E, the words 30 months should be read as five years. This is substituted by Finance Act 2016 dated 14.05.2016. 9. It is vehemently contended by learned counsel for the petitioner that the entire onus is now on the revenue to show cause that the petitioner would fall within the category of 73 (1) of the Act extended period to be falling outside the category of 30 months and for an extended period i.e., five years. He relies on the master circular on show cause notice adjudication and recovery issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, dated the 10.03.2017, which he has annexed along with his written submission, which deals with the show cause notice and the demand made by the revenue in several situations. 10. Learned counsel for the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement of this Tribunal, we hold that merely on the basis of form 26AS is issued by the Income Tax Department, the demand of service tax is not sustainable against the appellant under paragraph No.11. In view of this, we hold the impugned demand is not sustainable against the appellant on the basis of details provided by income tax department in form 26AS and the extended period of limitation is not invocable." 14. In the case of M/s Luit Developers Private Limited vs. Commissioner of CGST & Central Excise, Dibrugarh passed by the Customs Exercise Service Tax Appellate Tribunal, Kolkata, in Service Tax Appeal No.75792/2021, he relies on para No.11 which reads as under: 11. I also find force in the submission of the Ld Counsel for the appellant that figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is any evidence shown that it was due to a taxable service as held in Kush Constructions (supra). Also, figures shown to Income Tax authorities cannot be used to determine Service Tax as held in Synergy Audio Visual Workshop Pvt Ltd (supra) and Deluxe Enterprises (supra). 15. On these grounds he contends that merely relying upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice under proviso to Section 73 (1) of the Act which is beyond the period of 30 months by showing proper reasons as provided under the proviso, would probably not be applicable to the petitioner on hand, for the reason that there is clear suppression of facts and willful misstatement by the petitioner in not registering himself under the service tax and not paying the service tax and there is a contravention of the provisions of the chapter to evade payment of service tax. These requirements are enshrined in the proviso to Section 73 (1) of the Finance Act 1994. 19. The further argument put forth by the learned counsel for the petitioner that merely on the basis of information secured from the ITR or the tax department, proceedings could not have been initiated against the assessee, would also not be sustainable for the reason that on the basis of information obtained from the ITR, the revenue issued show cause notice, called for reply, which was furnished, a fair opportunity of hearing was given to the assessee/petitioner, asking him to produce necessary documents and details wherein the only defence taken by the petitioner was that he was under the impression that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994. 22. It is not the case of the petitioner that he was not provided an opportunity to reply and so also it is not his case that he was not given a personal hearing or opportunity of hearing. The petitioner was asked to provide details with regard to why he has not registered under the service tax and not paid the service tax. The answer to it is extracted in paragraph No.9 of the order, where he is stated that he was under the impression that he is exempted for payment of service tax and for agricultural sector and hence, he did not obtain service tax number and did not pay the service tax. Pursuant to which, an opportunity was given to the petitioner and even in the hearing, he had participated and same thing was narrated with regard to carrying on the drilling of bore wells for agricultural land and hence, he would not fall within the category of the service tax registration. 23. Therefore, it is apparently clear that once the show cause notice is issued under the proviso to Section 73 (1) of the erstwhile Finance Act, invoking the extended period of limitation beyond the 30 months and once an inquiry is conducted, opportunity is given to file reply when adjudication is hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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