2024 (12) TMI 843 - AT - Service Tax

Liability of appellant to pay service tax with interest and penalty - activity of providing services of real estate agent falls under the definition of service or not - contention of appellant is that the demand cannot be raised only on the basis of Form 26AS - HELD THAT - It is true that service tax cannot be demanded solely on the ground that an amount is mentioned as having been paid to the appellant in Form 26AS. However, if the appellant had not filed any returns and was also not registered with the service tax department, Form 26AS does provide an important source of information on the amounts paid to the appellant. If the amounts paid to the appellant as reflected in Form 26AS were for any other purpose, other than rendering a taxable service, such amounts cannot be included to demand service tax. In this case, the undisputed fact is that all the amounts paid by M/s DHL to the appellant as reflected in Form 26AS were towards rendering its services as the commission agent only. Therefore, service tax was correctly demanded on the amounts so received. The submission of the appellant that the amounts paid to it during 2012-2013 must be proportionately reduced and a lesser amount should be reckoned as having been received during July 2012 to March 2013 cannot be accepted in the absence of any supporting evidence. The impugned order is correct and proper and calls for no interference - The impugned order is upheld - appeal is dismissed.

Summary

Issues:
1. Liability to pay service tax on commission received by the appellant.
2. Applicability of exemption notifications.
3. Relevance of Form 26AS in determining service tax liability.
4. Invocation of extended period of limitation.
5. Correctness of demands raised by the tax department.

Analysis:

Issue 1: The appellant challenged the order-in-appeal upholding the demand for service tax on the commission received for selling plots. The appellant argued that the commission received did not exceed Rs. 10 lakhs, thus exempt from service tax. However, the tax department contended that the appellant provided taxable services and the amounts received exceeded the threshold, making him liable for service tax.

Issue 2: The appellant claimed exemption under Notification No. 32/2012 and 33/2012-ST due to the total service provided not exceeding Rs. 10 lakhs. The tax department argued that the appellant failed to register for service tax, and the amounts received were for taxable services, justifying the demand for service tax.

Issue 3: The appellant disputed the reliance on Form 26AS by the tax department to determine service tax liability. The tribunal clarified that Form 26AS serves as crucial evidence in the absence of filed returns or registration. The tribunal emphasized that the amounts paid to the appellant were solely for taxable services, justifying the service tax demands.

Issue 4: The appellant contended that the extended period of limitation should not apply as there was no malafide intention. However, the tribunal did not find merit in this argument and upheld the demands based on the evidence presented.

Issue 5: The tribunal dismissed the appellant's argument to proportionately reduce the amount received during a specific period, emphasizing the lack of supporting evidence. The tribunal upheld the impugned order, concluding that the demands were correctly calculated and justified based on the services rendered by the appellant.

In conclusion, the tribunal upheld the order-in-appeal, dismissing the appellant's appeal and affirming the correctness of the demands raised by the tax department. The tribunal emphasized the importance of Form 26AS in determining service tax liability and rejected the appellant's arguments regarding exemption notifications and the invocation of the extended period of limitation.