2018 (9) TMI 182 - AT - Service Tax

Advertising Service - suppression of facts - extended period of limitation - penalty - Held that - During the relevant period the service tax was chargeable only on the actual receipt of the gross value towards the service provided. In the balance sheet the total income on the basis of billed amount is booked, even if the billed amount though recorded in the books of accounts but out of which a part amount is not received, the same cannot be charged to service tax. However, this aspect has not been properly considered by lower authority - matter requires reconsideration. Penalty u/s 76 and 78 - Held that - It is a settled law that the penalty under both the sections cannot be imposed simultaneously - Penalty u/s 76 set aside. Appeal allowed by way of remand.

Summary

Issues:
1. Calculation of service tax demand based on income difference in balance sheet and ST-3 returns.
2. Time bar on demand for the period 2002-2004.
3. Simultaneous imposition of penalties under Section 76 and 78.
4. Consideration of suppressed facts in issuing show cause notice.

Analysis:

Issue 1: Calculation of service tax demand
The appellant contested the demand based on the difference between the income in the balance sheet and the gross value in ST-3 returns. The appellant argued that service tax should only be charged on actual receipts, not on billed amounts. The Tribunal acknowledged this argument, stating that service tax is applicable only on the actual receipt of the gross value of services provided. The Tribunal found that the lower authority did not properly consider this aspect. Consequently, the matter was remanded for proper consideration.

Issue 2: Time bar on demand
The appellant raised a concern regarding the time bar on the demand for the period 2002-2004. They argued that the demand was beyond the normal period as the show cause notice was issued in 2008. The Tribunal agreed with this argument, noting that the demand for the period in question was time-barred. Additionally, since a previous show cause notice had already been issued for the same period, the second notice was also considered time-barred.

Issue 3: Simultaneous imposition of penalties
The appellant challenged the simultaneous imposition of penalties under Section 76 and 78. The Tribunal concurred with the appellant, stating that penalties under both sections cannot be imposed simultaneously. As a result, the penalty imposed under Section 76 was set aside, while the issue of penalty under Section 78 and limitation was kept open for further consideration.

Issue 4: Consideration of suppressed facts
The Revenue argued that the demand was rightly quantified based on the information provided in the show cause notice. They contended that even if facts were suppressed by the appellant and later revealed, issuing a second notice was justified. The Tribunal did not delve deeply into this issue as the focus was primarily on the calculation of the service tax demand and the imposition of penalties.

In conclusion, the Tribunal remanded the case for proper consideration of the calculation method for service tax demand, upheld the time bar on the demand for the period 2002-2004, set aside the penalty under Section 76, and left the issue of penalty under Section 78 and limitation open for further examination. The judgment highlighted the importance of correctly applying tax laws and procedures while emphasizing the need for a fair and thorough adjudication process.