2021 (10) TMI 95 - AT - Service Tax

Rejection of sales turnover - Non-filing of returns - It appeared to Revenue that the appellant have submitted ST-3 returns only for the period April, 2015 to September, 2015 (filed on 08.04.2018) and the other three half yearly returns were not found on the electronic record, and it appeared such returns have not been filed - HELD THAT - There is no such assumption and presumption available to the Adjudicating Authority for rejection of sales turnover. Even a best judgment assumption has to be based on documents and information on record. Further after going through the provisions of Section 40A(3A) and (4), it has been provided - where an allowance has been made in the assessment for any year in respect of any liability incurred by the assessee for any expenditure, and subsequently during any previous year the assessee makes payment in respect thereof, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, the payment so made shall be deemed to be the profits and gains of business or profession and accordingly chargeable to income tax as income of the subsequent year, if the payment or aggregate of payments made to a person in a day, exceeds twenty thousand rupees - such provisions of Section 40A(3A) of the Income Tax Act, have no relevance for the purpose of determination of liability under the provisions of service tax. Revenue cannot deny the giving of credit for the challan(s) deposited during investigation, or tax paid using cenvat credit. The respondent - Revenue is directed to reconcile the challan(s) with the assistance of the appellant and to give credit of each and every challan deposited by the appellant. Accordingly, this ground is also allowed in favour of the appellant. The substantial demand set aside, penalty under section 76 is set aside. Penalty under section 77(2) is reduced to ₹ 5,000/- per return or ₹ 15,000/- in total. Penalty under section 70 read with Rule 7C of Service Tax Rules is reduced to ₹ 5,000/-. Appeal allowed.

Summary

Issues Involved:
1. Exemption on services provided to Railways.
2. Treatment of receipts from the sale of bricks.
3. Abatement on works contract services.
4. Exemption for laying underground cables for BSNL.
5. Credit for service tax paid through challans.
6. Invocation of the extended period for demand.
7. Imposition of penalties under Sections 76, 77(2), and Rule 7C of the Service Tax Rules.

Detailed Analysis:

1. Exemption on Services Provided to Railways:
The appellant contended that the services provided to Railways were exempt under Notification No. 25/2012-ST dated 20.06.2012. The Commissioner allowed exemption for amounts reflected in Form 26AS but not for the total amounts received as per the profit and loss account. The Tribunal held that the Commissioner erred in not allowing exemption on the full amount of ?5,22,651/- for the year 2015-16 as recorded in the profit and loss account. Hence, no service tax is chargeable on this amount.

2. Treatment of Receipts from the Sale of Bricks:
The Commissioner treated the receipts from the sale of bricks as taxable services due to the lack of documentation and cash transactions exceeding ?20,000/-, which was not allowable under Section 40A(3A) of the Income Tax Act. The Tribunal found that the provisions of the Income Tax Act are not relevant for service tax determination and that there is no presumption available to the Adjudicating Authority to reject sales turnover. Thus, the demand for service tax on the sale of bricks was set aside.

3. Abatement on Works Contract Services:
The Commissioner disallowed abatement on works contract services due to the non-filing of ST-3 returns, making it unverifiable whether CENVAT credit was availed. The Tribunal held that the appellant is entitled to abatement as the use of materials was admitted, and the assumption of availing CENVAT credit without evidence is not permissible. Therefore, the tax liability must be determined after allowing abatement at the prescribed rate.

4. Exemption for Laying Underground Cables for BSNL:
The appellant argued that the activity of laying underground cables for BSNL is exempt as per Circular No. 123/5/2010-TRU dated 24.05.2010. The Tribunal agreed, referencing a similar case (Indian Telephone Industries Ltd. vs. Commissioner of GST & Central Excise), and set aside the demand for service tax on this activity.

5. Credit for Service Tax Paid Through Challans:
The appellant claimed a refund of ?71,97,979/- deposited during the investigation. The Commissioner denied adjustment due to the absence of ST-3 returns. The Tribunal directed the Revenue to reconcile the challans with the appellant's assistance and give credit for all taxes paid, with a refund of any excess payment along with interest at 12% p.a. from the date of deposit.

6. Invocation of the Extended Period for Demand:
The appellant challenged the invocation of the extended period for demand. The Tribunal upheld the invocation due to the appellant's admitted failure to file returns for the period October 2015 to March 2017.

7. Imposition of Penalties:
The Tribunal set aside the penalty under Section 76 and reduced the penalties under Section 77(2) to ?5,000/- per return (?15,000/- in total) and under Section 70 read with Rule 7C to ?5,000/-.

Summary of Judgment:
- No service tax is payable on ?5,22,651/- for work done for Railways in 2015-16.
- No service tax is chargeable on the sale of bricks.
- Abatement must be allowed on works contract services.
- No service tax is chargeable on laying underground cables for BSNL.
- Credit for all taxes paid through challans must be given, with a refund of any excess payment with interest.
- The Adjudicating Authority is directed to recompute the tax liability based on this order.
- Penalty under Section 76 is set aside; penalties under Section 77(2) and Rule 7C are reduced.

The appeal is allowed, and the impugned order is modified. The appellant is entitled to consequential benefits.