2011 (8) TMI 168 - AT - Service Tax

Demand - result of difference between the figures shown in relevant balance sheet (which are higher) and the figures shown in the ST-3 returns filed (which are lower) - The explanation offered by the assessee for the discrepancy in the figures in the balance sheet and the ST-3 returns is that as per Section 209 of the Companies Act, 1956, the books of account are to be maintained on accrual basis and proper books of account are not deemed to have been kept if the books are not kept on accrual basis - Since it is a statutory provision which is being relied upon by the assessee to support his contention, interest of justice requires that the impugned order relating to demand of tax is set aside and the case remanded to the adjudicating authority for passing fresh orders in the light of the above, after extending a reasonable opportunity to the assessees of being heard in its defence Regarding Penalty - adjudicating authority (whose order has been upheld by the lower appellate authority) has extended the shelter under Section 80 of the Finance Act, 1994 in order to drop proceedings for penalty under Section 76 - Appeal is allowed by way of remand to adjudicating authority

Summary

Issues:
Demand of service tax under Section 73 (2) of the Finance Act, 1994 for the period 2003-04 to 2006-07 based on discrepancies in balance sheet and ST-3 returns, including service tax on fees for lectures delivered by the Director.

Analysis:
The Appellate Tribunal considered the demand of service tax amounting to Rs.4,77,196/- covering the period 2003-04 to 2006-07 under the proviso to Section 73 (2) of the Finance Act, 1994. The demand was confirmed by the lower authorities due to discrepancies between the figures in the balance sheet and the ST-3 returns filed by the assessee. Additionally, the demand included service tax levy on fees for lectures delivered by the Director of the assessee, an expert in electric wiring. The Tribunal noted that the assessee's explanation for the discrepancy was based on Section 209 of the Companies Act, 1956, which requires maintaining books of account on an accrual basis. The Tribunal found merit in the argument that the statutory provision of the Companies Act was not considered by the authorities. Therefore, the Tribunal set aside the order related to the tax demand and remanded the case to the adjudicating authority for fresh orders, emphasizing the need to consider the statutory provisions and provide the assessee with a reasonable opportunity to present their defense.

Regarding penalties, the Tribunal addressed the penalties imposed under Sections 77 (1) (a) and 78 of the Finance Act, 1994. The Tribunal held that the penalty under Section 77 (1) (a) could not be sustained as this provision was introduced in the Finance Act only from May 2008, while the tax demand was for a period prior to that. Consequently, the Tribunal set aside the penalty imposed under Section 77 (1) (a). In relation to the penalty under Section 78, the Tribunal observed that the adjudicating authority had already provided shelter under Section 80 of the Finance Act, 1994, indicating a reasonable cause for the failure to pay tax. Given this finding, the Tribunal concluded that penalty under Section 78, which covers cases of suppression or misstatement with intent to evade duty payment, could not be imposed. Therefore, the Tribunal set aside the penalty under Section 78.

In conclusion, the Tribunal allowed the appeal by remanding the case to the adjudicating authority for reconsideration of the service tax demand, taking into account the statutory provisions and providing the assessee with a fair opportunity to present their case.