2019 (10) TMI 540 - HC - Service Tax

Rejection of cum tax claim of the Petitioner - services of Supply of Manpower - Petitioner during 2011-12 to 2014-15 collected Service Tax from its clients but deposited partial amount with Service Tax authorities - HELD THAT - The Respondent considered value appearing in 26AS Form cum tax value and Settlement Commission on the basis of sample invoices found that Petitioner is entitled to benefit of cum tax value. The Settlement Commission has further noted that tax was collected but not deposited. The gross value was shown in the balance sheet as well Form 26AS. There seems no reason to deny benefit of cum tax value in view of the fact that price appearing in 26AS Forms was admittedly cum tax price and as per judgments cited by Petitioner gross value is considered as cum tax. The Settlement Commission has found that tax was collected but not deposited but there is nothing on record to show that tax was collected over and above value appearing in balance sheet rather value appearing in 26AS Form has been considered as cum tax price - there are no reason to deny benefit of cum tax value. Petition allowed.

Summary

Issues:
1. Modification/quashing of order declining "cum tax" claim by Settlement Commission.

Analysis:
The petitioner, a proprietorship concern providing "Supply of Manpower" services, collected Service Tax but deposited only a partial amount with authorities. An investigation led to a Show Cause Notice, and the petitioner approached the Settlement Commission seeking relief. The Commission granted immunity from prosecution but imposed a penalty, while declining the "cum tax" benefit claimed by the petitioner, which is the crux of the dispute.

The petitioner argued that the Commission wrongly denied the benefit, citing that the cum tax value was considered in the show cause notice itself and supported by sample invoices and a Chartered Accountant's certificate. Legal precedents were referenced to support the claim. On the other hand, the respondent contended that the petitioner failed to submit invoices, justifying the Commission's decision. The respondent also disputed the applicability of the legal judgments cited by the petitioner.

The key issue revolved around the interpretation of the cum tax value, as highlighted in the show cause notice and the impugned order. The petitioner's failure to produce all invoices led to the denial of the cum tax benefit, despite the Chartered Accountant's certification. The Commission found that the petitioner collected but did not deposit the Service Tax, resulting in a penalty imposition.

Legal precedents, including judgments by the Supreme Court and Tribunal decisions, were crucial in determining the entitlement to cum tax benefit. The value shown in the Form 26AS was considered as cum tax value, and the petitioner's gross value discrepancy was noted. Ultimately, the Court found no reason to deny the cum tax benefit and directed the respondent to recalculate the liability after granting the said benefit within a specified timeframe.

In conclusion, the Court allowed the petition, modifying the Settlement Commission's order and instructing the respondent to factor in the cum tax value while calculating the liability.