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2014 (2) TMI 486 - AT - Service TaxDemand of service tax on the basis of Profit and loss account figuring in Income Tax Return - Held that - The appellant has demonstrated the reconciliation before the Tribunal by showing Bank Statement and entries dated 04-05-2008 and 03-06-2009 - In an appeal involving such a small amount and obvious explanation from the appellant there is no reason to expose the appellant to another apparently hostile round of adjudication - it is reasonable to accept the evidence and explanation submitted by the assessee - 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.
Issues Involved:
1. Tax liability over and above the amount of Rs.16,57,515/- 2. Differential tax demand due to rate discrepancies and payment timings 3. Verification of the appellant's claims regarding tax payments 4. Penalty under section 78 and section 77 of the Finance Act, 1994 5. Invocation of extended period for demand and suppression of facts Issue-wise Detailed Analysis: 1. Tax Liability Over and Above the Amount of Rs.16,57,515/-: The appellant contested the additional tax liability of Rs.70,251/-, arguing that the discrepancy arose from the Revenue's reliance on figures from the Income Tax return, which is based on accrued income, whereas Service Tax is paid on received income. The Tribunal agreed, noting that the service tax liability should be based on the receipt of consideration for the service, not on accrued income. 2. Differential Tax Demand Due to Rate Discrepancies and Payment Timings: The appellant highlighted that the tax rate was 10.3% for March 2009, while the show cause notice and adjudication order incorrectly applied a 12.36% rate. Additionally, payments for certain bills dated 31-03-2009 were received in the subsequent financial year. The Tribunal found that the Revenue's verification report did not address these discrepancies adequately and accepted the appellant's explanation and evidence, including bank statements showing payments received in the next financial year. 3. Verification of the Appellant's Claims Regarding Tax Payments: The Tribunal criticized the Revenue's verification report, which doubted the appellant's claims without substantial evidence. The Tribunal noted that the report avoided taking responsibility for verification and failed to provide concrete evidence to disprove the appellant's claims. The Tribunal accepted the appellant's bank statements and other evidence presented during the appeal, concluding that no further tax was due beyond what had already been paid. 4. Penalty Under Section 78 and Section 77 of the Finance Act, 1994: The Tribunal considered the appellant's argument that they were a small individual service provider and had paid the service tax and interest once the issue was pointed out. The Tribunal invoked section 80 of the Finance Act, 1994, to waive the penalty under section 78, recognizing the appellant's efforts to comply and the delay in receiving the service tax amount from TAFE. However, the Tribunal upheld the Rs.5000/- penalty under section 77 for late registration, deeming it appropriate. 5. Invocation of Extended Period for Demand and Suppression of Facts: The Revenue argued that the appellant suppressed facts and misrepresented information, justifying the extended period for demand and penalties. The Tribunal found that the appellant had cooperated once the issue was pointed out and had paid the due amounts. The Tribunal did not find sufficient grounds for invoking extended period penalties, especially considering the appellant's status as a small entrepreneur and the delay in receiving payments from TAFE. Conclusion: The Tribunal partially allowed the appeal, setting aside the demand in excess of Rs.16,57,515/- and waiving the penalty under section 78. The Rs.5000/- penalty under section 77 was retained. The Tribunal emphasized the need for fair treatment of small service providers and criticized the Revenue's handling of the verification process.
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