2019 (6) TMI 21 - AT - Service Tax

Business Auxiliary Services - Short payment of Service tax - extended period of limitation - HELD THAT - The department does not have a case that respondents have suppressed any receipts in the returns. The demand has been raised on the basis of the gross bill amounts observing that certain parts of these bills have not been included for discharging the service tax liability. The respondents have contended that these are profit share and also reimbursable expenses, which are not to be included in the total taxable value. Thus, when the ST-3 returns have regularly disclosed, the entire income received by them and also the books of accounts reflect the amounts as shown in the balance sheet, the Commissioner (Appeals) has rightly held that there is no suppression of facts with intention to evade payment of service tax. Appeal dismissed - decided against Revenue.

Issues: Alleged short-payment of service tax under Business Auxiliary Services, decision of setting aside the demand on the ground of limitation, suppression of facts by the assessee, non-inclusion of certain charges in taxable value, non-payment of service tax on specific amounts, invocation of extended period, disclosure in ST-3 returns, absence of provision to declare all components of gross bill charges, contention of suppression of facts to evade tax, findings of the Commissioner (Appeals), dismissal of appeal by the Tribunal.

1. Alleged short-payment of service tax under Business Auxiliary Services:
The case involved a show-cause notice alleging short-payment of service tax under Business Auxiliary Services. The original authority confirmed the demand, interest, and penalties. However, the Commissioner (Appeals) set aside the order on the ground of limitation, leading the department to appeal before the Tribunal. The key issue was whether the demand was justified and whether there was any suppression of facts by the assessee to evade payment of service tax.

2. Decision of setting aside the demand on the ground of limitation:
The department argued that the decision of the Commissioner (Appeals) to set aside the demand on the ground of limitation was incorrect. The department contended that the assessee had not disclosed relevant details, amounting to suppression of facts. It was highlighted that the form of ST-3 return during the relevant period did not have a separate column for declaring non-taxable value, but this was not a valid excuse for the assessee to withhold income details. The department claimed that the assessee intentionally suppressed facts to evade service tax payment, and thus, the demand should not have been set aside on the basis of limitation.

3. Disclosure in ST-3 returns and absence of provision to declare all components of gross bill charges:
The Tribunal noted that the respondents had regularly filed their ST-3 returns and disclosed all receipts. The department's demand was based on gross bill amounts, alleging non-inclusion of certain charges for service tax liability. The respondents argued that these charges were profit share and reimbursable expenses not subject to tax. The Commissioner (Appeals) found that there was no suppression of facts by the assessee, as all income was properly accounted for in their books and balance sheet. The absence of a provision in the returns to declare all components of gross charges was considered, and the Tribunal upheld the Commissioner's decision.

4. Findings of the Commissioner (Appeals) and dismissal of appeal by the Tribunal:
The Commissioner (Appeals) had held that there was no suppression of facts with the intention to evade service tax payment. The Tribunal, after perusing the records, found no grounds to interfere with the Commissioner's decision. Consequently, the appeal filed by the department was dismissed. The Tribunal concurred with the view that the demand was hit by the limitation of time and upheld the decision based on the proper disclosure of income by the assessee.

In conclusion, the Tribunal's judgment upheld the Commissioner (Appeals)' decision to set aside the demand on the ground of limitation, emphasizing the importance of proper disclosure of income and the absence of suppression of facts by the assessee in the case.

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