2018 (2) TMI 1410 - AT - Service Tax

Non-payment of service tax - only point on which the present demand is made is that there is difference between the statutory returns and the annual balance sheet - Held that - Admittedly, the appellants have more than one business premises through which the taxable service were provided. These were registered with the Department and discharging the service tax. The balance sheet of the appellant as a whole did not distinguish the different service centres. Further, the SCN did not give any reason to allege short levy except the difference between balance sheet and the ST-3 returns. The burden of explaining the difference amount being not taxable income has been shifted to the appellant. This will be against the very basis of tax levy. It is the Department which alleged short payment and at least basic preliminary supporting evidence of such short payment has to be made so that the appellant can defend their case. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Dispute regarding non-payment of service tax on certain consideration.
2. Allegation of short payment of service tax based on difference between balance sheet and ST-3 returns.
3. Lack of explanation in show cause notice regarding nature of services rendered.
4. Burden of proof on appellant to explain the difference between balance sheet and statutory returns.
5. Lack of justification for demand of short levy by lower authorities.

Analysis:
The appeal before the Appellate Tribunal CESTAT New Delhi challenged the order of the Commissioner (Appeals) regarding non-payment of service tax. The dispute arose from the difference between the annual balance sheet and the ST-3 returns of the appellants for the year 2005-2006, leading to a demand for short paid service tax of ?34,48,000. The appellant argued that the proceedings lacked clarity as the show cause notice did not specify the nature of services rendered or the service recipient, making it difficult for them to defend their case adequately.

The appellant contended that they provided detailed breakdown figures and defended their position, but the lower authorities confirmed the demand without proper verification or justification. On the other hand, the Revenue argued that it was the appellant's responsibility to explain the variance between the balance sheet and the statutory returns, attributing the short levy to the service tax under Business Auxiliary Service (BAS).

Upon hearing both parties and reviewing the case record, the Tribunal found that the demand for short levy lacked legal justification. It was noted that the show cause notice failed to provide any specific reasons for alleging short levy apart from the difference between the balance sheet and ST-3 returns. The Tribunal highlighted a previous case involving the appellant where a similar issue was raised, and it was determined that the appellants were not liable to pay service tax. In the present case, the notice and lower authorities did not substantiate the demand for short levy with cogent reasons, shifting the burden of proof unfairly onto the appellant.

The Tribunal emphasized that the Department needed to provide preliminary supporting evidence of the alleged short payment to enable the appellant to defend their case effectively. Failing to do so would undermine the fundamental basis of tax levy. Consequently, the impugned order was set aside, and the appeal was allowed, indicating a lack of legal grounds to sustain the demand for short levy based solely on the difference between the balance sheet and statutory returns.