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2013 (7) TMI 667 - AT - Service TaxDemand of tax - Manpower recruitment and supply agency - Whether Demand of service tax and penalty on Manpower Recruitment and Supply Agency service upon the assessee by the department sustainable - Held that - The entire service tax and interest liability was remitted prior to issuance of notice - the petitioner is entitled to immunity from initiation of further proceedings u/s 73 (3) - Court relied upon CCE & ST, LTU, Bangalore vs. Adecco Flexione Workforce Solution Limited (2011 (9) TMI 114 - KARNATAKA HIGH COURt) - the entire amount of service tax and interest on the taxable service of Manpower Recruitment and Supply Agency service including the quantum of Service tax and interest on the Provident Fund amounts remitted by the service recipient to the Provident Fund authorities on behalf of the assessee - were remitted by the assessee to Revenue even before issue of show cause notice decided in favour of assessee
Issues:
1. Failure to file returns and remit service tax on Provident Fund amount. 2. Discrepancy in service tax liability for the period 16.6.2005 to 28.2.2007. 3. Imposition of penalties under Sections 76, 77, and 78 of the Act. Issue 1: Failure to file returns and remit service tax on Provident Fund amount The assessee, a Service Tax registrant for Manpower Recruitment and Supply Agency service, failed to file returns and remit service tax on a portion of the Provident Fund amount paid by the service recipient. The Revenue observed this discrepancy during an audit. The adjudicating order confirmed the service tax demand and penalties under Section 78 of the Act. However, the appellate Commissioner set aside the demand for the period 16.4.2005 to 28.02.2007 but upheld it for the period March 2007 to December 2008. The appellate authority directed the quantification of service tax and Provident Fund liability for the latter period and upheld penalties under Sections 76, 77, and 78 of the Act. Issue 2: Discrepancy in service tax liability The appellant contended that the entire service tax and interest on the taxable service, including the Provident Fund amounts, were remitted before the show cause notice. The appellant argued for immunity under Section 73(3) of the Finance Act, 1994. The appellant claimed that the service tax and interest liability were remitted even before the notice was issued. The appellant emphasized that no wilful suppression of liability or intent to evade tax existed, citing precedents from the Karnataka High Court. The Tribunal considered the precedents and provisions of Section 73(3) of the Act and concluded that the imposition of penalty by the adjudicating authority, as confirmed by the appellate authority, was unsustainable. The order was quashed to the extent of confirming the penalty. Issue 3: Imposition of penalties The Tribunal, following the Karnataka High Court decisions and Section 73(3) of the Act, found the penalty imposed on the assessee unsustainable. The order of the appellate authority confirming the penalty was quashed. However, the direction to quantify the service tax liability on the Provident Fund for March 2007 to December 2008 was upheld. All orders related to penalty components were set aside, and the appeal was allowed without cost. In conclusion, the Tribunal addressed the issues of failure to file returns, discrepancies in service tax liability, and the imposition of penalties. The appellant's compliance with remitting the service tax and interest before the show cause notice led to the Tribunal quashing the penalty imposed. The Tribunal upheld the quantification of service tax liability for a specific period but set aside all penalty components. The decision aligned with precedents and statutory provisions, ensuring a fair outcome for the appellant.
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