2014 (2) TMI 485 - AT - Service Tax

Demand of service tax on the basis of Profit and loss account figuring in Income Tax Return - inclusion of TDS amount - cum-duty value - The reason given by appellant is that this liability is in respect of amounts received by the appellant in the subsequent financial year on which they paid tax in the subsequent financial year - Held that - there is some default on the part of the appellant in submitting reconciliation statement before the lower authorities though the basic reason for difference between figures in Income Tax return and ST-3 return was stated before the lower authorities. In the circumstances non-submission of reconciliation statement before lower authorities is not a sufficient reason for sending this matter involving such a small tax amount for another round of litigation. - Demand set aside. Regarding penalty u/s 78 - Held that - this is a fit case to waive penalty in exercise of the powers under section 80. This appellant and the facts of the case cannot be considered on the same footing as the various assessees mentioned in para 10 (iv) earlier. So the penalty under section 78 is waived.

Summary

Issues:
1. Service tax liability for the period 01-10-04 to 31-03-08.
2. Demand confirmation against the appellant.
3. Dispute regarding tax liability.
4. Appellant's submissions on tax difference.
5. Gross total receipts in the IT return.
6. Inclusion of receipts in subsequent financial years.
7. Disputed amounts in ST-3 return.
8. Verification report by Revenue.
9. Differential tax amount calculation.
10. Arguments by Ld. AR for Revenue.
11. Payment timing and alleged suppression.
12. Appellant's knowledge of service tax laws.
13. Allegation regarding misstatement.
14. Dispute resolution after adjudication.
15. Decision on differential duty demand.
16. Consideration of penalties.

Analysis:
1. The appellant was engaged in providing Maintenance and Repair Services to a company and did not pay service tax for the period 01-10-04 to 31-03-08. The Revenue conducted investigations and found discrepancies in tax payments, leading to a show cause notice covering both registered and unregistered periods.

2. After adjudication, a demand of Rs.5,71,328/- was confirmed against the appellant, including interest and penalties. The dispute in the appeal was regarding a tax amount of Rs.51,054/- and related interest and penalties, beyond the amount already paid by the appellant.

3. The appellant's advocate raised three factors causing the tax difference, including discrepancies in income tax returns, gross total receipts, and inclusion of amounts in subsequent financial years.

4. The Revenue's verification report highlighted discrepancies in the appellant's income tax returns and service tax payments, leading to a calculation of a differential tax amount of Rs.3189/-.

5. The Ld. AR for Revenue argued for the sustainability of penalties due to alleged suppression by the appellant, citing relevant legal decisions and timing of tax payments.

6. The appellant, being a small service provider, claimed lack of familiarity with service tax laws and explained the delay in tax payment, emphasizing efforts made to rectify the situation upon notification.

7. The judge considered the submissions from both sides and found the disputed tax amount to be Rs.3189/- only, based on the reconciliation report. The demand for differential duty was set aside.

8. Regarding penalties, the judge waived the penalty under section 78 due to the appellant's circumstances but upheld a small penalty of Rs.5000/- under section 77 for not timely registering. The appeal was partly allowed, setting aside the excess tax demand and the penalty under section 78.