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TMI Blog2025 (4) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the appellant. 2.1. Aggrieved from the said order, the appellant is before us. 2.2 The Ld. Counsel appearing on behalf of the appellant submits that the impugned demand is based solely on the appellant's financial records without any corroborative piece of evidence being adduced by the Revenue to substantiate their allegations. Therefore, he contends that the demand itself is void ab initio under the established legal provisions. To support his contentions, the Ld. Counsel for the appellant relied upon the decision in the case of M/s. Rishu Enterprise v. Commissioner of C.G.S.T. & Excise, Dibrugarh [Final Order No. 75177 of 2024 dated 08.02.2024 in Service Tax Appeal No. 75509 of 2022 - CESTAT, Kolkata] and also the decision in the case of M/s. Luit Developers Pvt. Ltd. v. Commissioner of C.G.S.T. & Central Excise, Dibrugarh [Final Order No. 75120 of 2022 dated 23.02.2022 in Service Tax Appeal No. 75792 of 2021 - CESTAT, Kolkata]. 2.3. It is his further submission that the appellant has engaged in the activity of construction of dams for the Government of Assam and the said activity is exempt since the same relates to transmission and/or distribution of electricity, in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been issued to the appellant by invoking extended period of limitation and some of the demand pertains to beyond five years and in this case, the demand has to be calculated in terms of Valuation Rules, 2006. The issue in this case is whether the appellant is eligible for the benefit of Notification No.30/2012-ST dated 20.06.2012 or not? 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 issue was 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 considered the rival contentions and on perusal of record, we find that in the cases of both the Show Cause Notices dated 20-4-2009 & 13-10-2009 there is no whisper of examination of books of account maintained by M/s. Sharma to arrive at the value of consideration received by them. Surprisingly the draft audit report was the relied upon document. It may be worth m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the present case. We, therefore, hold that Revenue did not discharge its burden to prove short payment of service tax. We also hold that the said show cause notice dated 05.10.2016 is not sustainable." 8. In view of the judicial pronouncement of this Tribunal, we hold that merely on the basis of Form 26AS issued by the Income Tax Department, the demand of Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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). 12. I find that the Service tax demand for the period April 2014 September 2014 is beyond the extended period of 5 years. I also find that the Department has done audit of the appellant for February, 2014-15 as per Detailed Manual Scrutiny Report dated 15.12.2017, which includes checking of Form 26AS as clearly mentioned in Para 5.2 of CBEC Circular No.185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012 and therefore no suppression can be alleged for this period. I also find that as held in Gannon Dunkerley & Co Ltd (supra), since the appellant was filing all ST-3 Returns regularly, the Department's stand that it could examine the factual position only on receiving details of Form 26AS cannot be sustained because CBEC Circular No. 113/7/2009-S.T., dated 23-4-2009 vide F.No. 137/158/2008-CX.4 and CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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