2016 (10) TMI 913 - AT - Service Tax

Cable operator services - extended period of limitation - whether the gross amount received including the amount paid to MSO required to be taxed apart from the amount of commission on which tax is already discharged? - correct value as per ST-3 returns - Held that - The appellate authority has relied upon the fact that the assessee was continuously filing the return with the department only reflecting the commission as value of the services, which fact leads to inevitable conclusion that there was no suppression or mis statement on the part of the assessee and such reflection of only commission as the value of the taxable value of the services was on account of confusion in the arena - In the absence of positive evidence, in our view, he has rightly held to be barred by limitation - demand against the assessee not sustainable - appeal disposed off - decided against Revenue.

Summary

Issues Involved:
1. Taxability of gross receipt in service tax returns.
2. Determination of tax liability based on gross receipt or value addition.
3. Question of limitation in tax demand.

Analysis:

Issue 1: Taxability of gross receipt in service tax returns
The judgment revolves around the taxability of gross receipt in service tax returns. The respondent, a service provider under cable operator services, was initially reflecting only the commission received in their returns. The Revenue contended that the gross receipt, including the amount paid to the Multi-System Operator (MSO), should be taxed. This led to the initiation of proceedings against the respondent, culminating in a demand for duty for a specific period.

Issue 2: Determination of tax liability based on gross receipt or value addition
The core issue was whether the respondent's tax liability should be based on the gross receipt or the value addition (difference between gross value and amount paid to MSO). The Commissioner (Appeals) set aside the tax demand, emphasizing that the respondent had consistently paid tax on the value addition or commission alone, believing it to be the correct taxable value. The Commissioner highlighted that there was no evidence of deliberate suppression to evade tax, as the respondent's actions were revenue neutral. Citing relevant case laws, the Commissioner concluded that the respondent's belief in paying tax on value addition was bona fide, and there was no intent to evade payment.

Issue 3: Question of limitation in tax demand
The judgment also addressed the question of limitation in the tax demand. The appellate authority found that the respondent's continuous filing of returns reflecting only the commission indicated a lack of suppression or misstatement. This led to the conclusion that the demand was barred by limitation. The appellate tribunal upheld the Commissioner's decision, stating that in the absence of positive evidence, the demand could not be sustained beyond the limitation period. Consequently, the Revenue's appeal was rejected.

In conclusion, the judgment clarified the taxability of gross receipt in service tax returns, emphasized the importance of determining tax liability based on value addition, and highlighted the significance of the limitation period in tax demands. The decision favored the respondent, recognizing their bona fide belief in paying tax on value addition and rejecting the Revenue's appeal based on the lack of evidence supporting tax evasion.