2024 (3) TMI 14 - AT - Service Tax

Short payment of service tax - difference in the figures found in the Trial Balance as compared to the figures declared in the ST-3 returns - suppression of facts or not - invocation of extended period of limitation - imposition of penalties - HELD THAT - It is a settled principle of law that service tax can be levied only when there is clear identification of a service provider service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed. For this reason, it is not open for the Department to raise demands on the basis of other statutory returns or balance sheets without proving that such service has been rendered by the appellant and consideration thereof has been received. The Tribunal in a catena of decisions has held that it is well settled law that no demand can be confirmed by comparing the ST -3 returns with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the provision of taxable service. As it is the Revenue authorities who have made the allegations of on payment of tax, and as such, the onus to prove the said allegation lies with them to substantiate the allegations. In the case of PRINCIPAL COMMISSIONER CGST CENTRAL EXCISE, MUMBAI EAST VERSUS M/S. SBI LIFE INSURANCE COMPANY LTD. 2024 (1) TMI 1161 - CESTAT MUMBAI , the Tribunal held that demand/penalty on the basis of difference between ST-3 Returns and Income tax returns of any period, without further examination to establish that the difference is on account consideration received towards discharge of services, cannot be sustained. Thus, mere difference in figures appearing in the trial balance as compared to the ST 3 returns without any corroborative evidence that taxable services had indeed been provided by the appellant cannot be upheld - Further, it is a fact on record that the appellant was filing his ST-3 returns regularly. The Department did not raise any query or seek any clarification from the appellant. Thereafter, merely on the basis of audit observation as per the figures of Trial Balance, the Revenue, cannot, at this stage allege suppression. The impugned order cannot be sustained and is set aside - Appeal allowed.

Issues Involved:
1. Sustainability of demand based on differences in ST-3 returns and Trial Balance figures.
2. Invocation of Rule 6(4A) of the Service Tax Rules for adjustment of excess service tax paid.
3. Applicability of extended period of limitation and penalties under Section 78 of the Finance Act 1994.

Issue-wise Comprehensive Details:

1. Sustainability of Demand Based on Differences in ST-3 Returns and Trial Balance Figures:

The appellant argued that the demand proposed in the Show Cause Notice (SCN) was solely based on the figures appearing in the Trial Balance and ST-3 returns, without examining the nature of the entries in the alleged ledger accounts and whether such amounts pertain to "taxable services" received/rendered. The Tribunal held that service tax can only be levied when there is clear identification of a service provider, service recipient, and consideration paid for the same. It is not open for the Department to raise demands based on other statutory returns or balance sheets without proving that such service has been rendered and consideration received. The Tribunal cited the case of Synergy Audio Visual Workshop (P) Ltd. vs Commissioner [2008(10) STR 578(Tri.Bang)], stating that amounts shown in income tax returns or balance sheets are not liable for service tax. The Tribunal concluded that mere differences in figures appearing in the trial balance as compared to the ST-3 returns, without any corroborative evidence that taxable services had indeed been provided, cannot be upheld.

2. Invocation of Rule 6(4A) of the Service Tax Rules for Adjustment of Excess Service Tax Paid:

The appellant contended that the excess service tax paid on "Works Contract" Service during FY 2015-16 should be adjustable against the short payment of service tax under "Legal Service" and "Security Service." The Adjudicating Authority had held that excess service tax paid in a particular year can be adjusted within the same year as per Rule 6(4A) of the Service Tax Rules. However, the Tribunal found that the excess payment of taxes related to one year, whereas the short payment of tax related to a different year. Therefore, the excess payment of tax could not be adjusted against the short payment of tax in terms of Rule 6(4A) of the Service Tax Rules.

3. Applicability of Extended Period of Limitation and Penalties under Section 78 of the Finance Act 1994:

The appellant argued that the extended period of limitation was not invokable due to the principle of Revenue Neutrality, as the entire confirmed demand (except for Rs. 13/- under Rent-a-Cab service) was under the Reverse Charge Mechanism, allowing the appellant to avail Cenvat Credit. The Tribunal cited the case of Asmitha Microfin Ltd v Commr. Of Cus., C. Ex & ST, Hyderabad-III [2020 (33) GSTL 250 (Tri- Hyd)], where it was held that extended period of limitation cannot be invoked in revenue-neutral cases. The Tribunal also noted that the Department did not provide positive evidence of suppression of facts with the intention to evade payment of service tax. The Tribunal referenced the case of Uniworth Textiles Ltd. vs. Commissioner of central Excise, Raipur 2013 (288) ELT 161 (SC), stating that mere non-disclosure of differential figures in ST-3 returns does not amount to suppression of facts. Consequently, the Tribunal set aside the invocation of the extended period of limitation and penalties under Section 78 of the Finance Act 1994.

Conclusion:

The impugned order was set aside, and the appeal was allowed. The Tribunal emphasized that demands based on differences in figures between ST-3 returns and Trial Balance, without corroborative evidence, cannot be sustained. Additionally, the Tribunal found that the excess payment of service tax could not be adjusted across different years and that the extended period of limitation and penalties were not applicable in this case.

[Pronounced in the open Court on 29.02.2024]

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