2009 (7) TMI 104 - AT - Service Tax

Pandal and Shamiana Contract Service held that - the entire amount of tax is based on the amount surrendered by the respondent to the Income Tax Department. No inquiry in the nature of recording of statement and otherwise was done. It is seen that the respondents had given an explanation that the amount was accumulated income of the earlier years since 1999. No inquiry was conducted in this regard. It is welt settled that the demand of tax cannot be sustained on the basis of mere presumption.

Summary

Issues:
- Appeal against Order-in-Appeal setting aside adjudication orders
- Tax demand on surrendered amounts by respondents
- Burden of proof on respondents regarding the source of surrendered amounts
- Applicability of income surrendered to Income Tax Department in determining taxable service value for service tax
- Lack of inquiry before tax demand based on surrendered amount

Analysis:
The appeal was filed against an Order-in-Appeal setting aside adjudication orders where the respondents were engaged in providing taxable "Pandal and Shamiana Service." The respondents had surrendered amounts to the Income Tax Department without explaining the sources of income, leading to proposed tax demands and penalties. The Revenue argued that the surrendered amounts were generated from the taxable service, justifying the tax demand and emphasizing the burden of proof on the respondents.

The respondents contended that the surrendered amounts accumulated over earlier years and were not necessarily related to the taxable service. They highlighted that they had paid service tax on other specific amounts received during the same period. The Tribunal noted that the surrendered amount was added to the income for a previous year under the Income Tax Act, representing undisclosed incomes from previous financial years. The Commissioner (Appeals) emphasized the need for evidence to link the surrendered income to the taxable service for charging service tax.

The Tribunal observed that no inquiry was conducted to verify the nature and source of the surrendered amount, solely relying on the respondents' explanation of accumulated income from earlier years. Citing precedents, the Tribunal held that tax demands cannot be sustained on mere presumption and that the burden of proof lay with the department, which was not discharged in this case. Consequently, the Tribunal rejected the Revenue's appeals and upheld the Order-in-Appeal, emphasizing the lack of grounds for interference.

In conclusion, the Tribunal's detailed analysis focused on the lack of evidence linking the surrendered income to the taxable service for imposing service tax. The decision underscored the importance of proper inquiry and evidence before determining tax liabilities based on surrendered amounts, ultimately leading to the rejection of the Revenue's appeals.