2020 (3) TMI 915 - AT - Service Tax

Liability of service tax of sub-contractor - appellant s contention was that the main contractor has discharged the entire service tax liability on the full amount including the service tax liable to be paid by the appellant as sub-contractor - HELD THAT - Admittedly, prior to the declaration of law by the Larger Bench of the Tribunal, in favour of the Revenue, there were catena of judgements laying down that if the main contractor has paid the entire service tax liability in respect of a particular contract, the demand against the sub-contractor would not survive. The lower authorities have expressed their doubt about the payment of the entire service tax by the principal contractor, which fact requires verification and examination by the lower authorities. As such, for the limited purpose of verifying the fact of payment of entire service tax by the main contractor, the matter is remanded to the lower authorities for doing the needful. Appeal allowed by way of remand.

Summary

Issues involved:
Confirmation of service tax demand against the appellant for construction services provided as a sub-contractor, liability to pay service tax even if main contractor has paid, availability of extended period for Revenue due to non-filing of ST-3 returns.

Analysis:

1. Confirmation of service tax demand: The judgment confirms a service tax demand of around ?28 lakhs against the appellant for providing construction services as a sub-contractor. The demand was upheld due to the appellant's failure to establish that the main contractor had discharged the entire service tax liability. The lower authorities confirmed the demand, along with interest and penalties.

2. Liability to pay service tax: The appellant contended that the main contractor had already paid the entire service tax liability, including that of the sub-contractor. However, based on the Larger Bench decision of the Tribunal, it was held that each assessee has an individual liability to discharge service tax. The appellant's argument that prior decisions favored sub-contractors when the main contractor paid in full was not accepted in light of the recent Tribunal decision.

3. Availability of extended period for Revenue: The Revenue argued that the extended period for assessment was available due to the appellant's failure to file ST-3 returns and the information received from the Income Tax authorities. The Tribunal considered this argument and proceeded to decide the appeal after hearing both parties.

4. Decision and remand: The Tribunal noted that prior to the recent decision in favor of the Revenue, there were judgments stating that if the main contractor paid the entire service tax, no further demand could be made on the sub-contractor. However, doubts were raised by the lower authorities regarding the payment by the main contractor. Therefore, the matter was remanded to the lower authorities for verification of the payment of service tax by the main contractor. If the payment is confirmed, the demand against the appellant would not stand, except for any outstanding amount not paid by the main contractor.

5. Final decision: The appeal was allowed by way of remand, with the case being sent back to the lower authorities for further verification and examination regarding the payment of service tax by the main contractor.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision in this case.