2024 (1) TMI 728 - AT - Service Tax

Invocation of Extended period of Limitation - existence of fraud, suppression or willful mis-statement in the facts of the present case or not - short-declaration of taxable value - short payment of service tax - existence of mens rea - HELD THAT - The extended period of limitation was invoked under proviso to Section 73(1) of the Finance Act, 1994, in the instant case only because the actual taxable value was not reflected/shown in the relevant column of ST-3 returns filed by the appellant during the relevant period. Apart from this the Show Cause Notice has not alleged anything which leads to wilful suppression of facts with an intention to evade payment of Service tax. As per the facts of the present case, the appellant have vehemently argued that they had provided the services to Governmental Authority in particular M/s. Tourism Corporation of Gujarat Limited, 100% owned by Gujarat Government and the activity of the appellant is carrying out work in relation to promotion of Gujarati Cultural, Educational and aesthetic aspects which is entrusted to Municipality under Article 243 W read with 12th Schedule of the Indian Constitution. The levy of Service Tax in the facts of the present case involve interpretation of law and therefore, the Bonafide of the appellant cannot be doubted. Hence, the demand for extended period is not sustainable on limitation. The mens rea/the intent to evade the tax liability is the core for invoking the extended period over the normal period. Appellants apparently have mentioned themselves to be under the bona fide belief of still not being liable under service tax. Based on the said belief only they have not disclosed the said disputed taxable value in ST-3 returns filed before the department. Their such bona fide belief stands corroborated from the fact that all the transactions related to the said disputed taxable value has been disclosed by the appellant in their books of account, profit loss account and in Balance Sheet. If the appellant have intention to evade service tax they would not have disclosed the same. It is also found that the documents relied on by the authority for issuing Show Cause Notice are the balance-sheet, P L Account, 26AS, Income Ledger, and ST-3 returns for the period from October 2014 to June 2017 and clearly, these are the statutory documents which have to be prepared and filed before the respective authorities within the time-frame prescribed under the respective statutes like the Income Tax Act or the Companies Act, or Service tax law as the case may be. Clearly, the disputed service income has been picked up from these very statutory documents and therefore, there cannot be any scope to allege suppression of the fact. The extended period of limitation is not inviolable, in the facts and circumstances of the case - The impugned order is set aside and appeal is allowed only on limitation.

Summary

Issues:
The issues involved in the judgment are the applicability of service tax on services provided to governmental authorities, classification of service as works contract service, invocation of extended period of limitation, and determination of service tax liability based on 26AS figures.

Applicability of Service Tax on Services Provided to Governmental Authorities:
The appellant, engaged in conducting conferences and exhibitions for various entities, argued that the services provided to governmental authorities were exempted under Notification 25/2012-ST. They contended that the services rendered to various government entities fell under specific entries of the notification, and therefore, were not liable for service tax.

Classification of Service as Works Contract Service:
The appellant also raised an issue regarding the classification of the service as a works contract service, advocating for the application of service tax on a reverse charge basis. They relied on specific sections of the Finance Act, 1994 and Service Tax Rules, 2006 to support their argument.

Invocation of Extended Period of Limitation:
The department alleged that the appellant had deliberately suppressed the actual taxable value in their ST-3 returns, leading to a short payment of service tax. The extended period of five years was invoked based on the grounds of fraud, collusion, wilful misstatement, or suppression of facts to evade payment of duty. However, the appellant contended that there was no intention to evade service tax, as the services were provided to government authorities, and all transactions were disclosed in their books of accounts.

Determination of Service Tax Liability Based on 26AS Figures:
The appellant argued against using figures from 26AS to determine service tax liability, citing relevant judgments to support their claim. They emphasized that the disputed taxable value was duly reflected in their books of accounts and statutory documents, and there was no deliberate suppression of facts to evade payment of duty.

Conclusion:
The Appellate Tribunal held that the extended period of limitation was not invocable in this case, as there was no evidence of fraud, collusion, or wilful misstatement by the appellant. The tribunal emphasized the appellant's bona fide belief regarding the non-liability under service tax, as evidenced by the disclosure of all transactions in their financial records. The impugned order was set aside, and the appeal was allowed solely on the ground of limitation, with consequential reliefs to the appellant as per law.