2011 (3) TMI 175 - HC - Service Tax

Mandap Keeper - Whether Tribunal is justified in holding that the amount of Rs.35 lacs surrendered to the Income Tax Authorities is not attributable to consideration received in relation to Mandap Keeper Services - Held that it was for the department to show the evasion of service tax and that the money found with the assessee represented proceeds of services provided by it - decided against revenue.

Summary

Issues:

1. Appeal under Section 35G of the Central Excise Act, 1944 against order dated 28.7.2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi.
2. Whether the amount of Rs.35 lacs surrendered to the Income Tax Authorities is attributable to consideration received in relation to Mandap Keeper Services.

Analysis:

1. The appellant, a registered Mandap Keeper with the Service Tax Department, surrendered Rs.35 lacs to the Income Tax Department as additional taxable income for the period of 2004-05. The Department considered this amount as proceeds of services provided by the appellant and subject to service tax. However, the Tribunal set aside the order, stating that without proper enquiry and statutory presumption, the Department could not treat the amount as representing proceeds of services. The Tribunal relied on a previous order in Kipps Education Centre Bathinda Vs. CCE Chandigarh 2009(13) STR 422. The Tribunal's decision was affirmed in the present case.

2. During the hearing, the counsel for the appellant argued that it was the Department's responsibility to prove the evasion of service tax and demonstrate that the money found with the appellant indeed represented proceeds of services provided. The Commissioner and the Tribunal based their decision on a previous Tribunal order. However, the counsel for the revenue admitted to having no knowledge about the status of the order followed in the impugned order. The Court criticized this lack of awareness, emphasizing the importance of responsible representation by the department and its counsel. The Court expressed hope that appropriate measures would be taken in the future.

3. The Court found that no substantial question of law had been demonstrated to arise from the case. As a result, the appeal was dismissed. The judgment highlights the importance of proper representation by the department and its counsel, as well as the necessity for the Department to establish the evasion of service tax and the source of income before imposing tax liabilities on taxpayers.