2010 (4) TMI 186 - AT - Service Tax

Short payment of service tax- it was observed that reconciliation of income shown in the balance sheet with declared income of ST-3 returns, it was noticed that the respondent has short paid the service tax. Further it appears that on comparison of actual receipts contained in all the ST-3 returns filed with the department, the service provider has willfully suppressed the receipt of the services provided for not paying the service tax. It further appears that certain receipt amounts were shown as receipt in the bank cash ledger on which the service tax appears to have been paid. . The adjudicating authority did not took any pain to reconcile the bank account, balance sheet along with ST-3 returns with the explanation given by the respondent during the course of investigation. Hence, the Commissioner (Appeals) has allowed their appeal. Held that- I do not find any reason to interfere with the impugned order which is a reasonable order and the respondent has already given the explanation of the point of differences raised by the department at the time of investigation and much before issuance of show cause notice. Accordingly, I do not find any merit in the appeals and the same are rejected.

Summary

Issues:
- Discrepancy between income shown in balance sheet and declared income in ST-3 returns.
- Allegation of willful suppression of service tax payment.
- Disputed receipts shown in bank ledger.
- Failure to produce documentary evidence for certain receipts.
- Dropping of demand against the respondent by Commissioner (Appeals).
- Appeal by Revenue against dropping of demand.
- Correctness of demands confirmed by adjudicating authority.
- Onus of proving taxable receipts on the department.
- Reconciliation of balance sheet, bank account, and ST-3 returns.

Analysis:
1. Discrepancy between income and declared income: The case involved a discrepancy between the income shown in the balance sheet and the income declared in the ST-3 returns. The respondent was accused of short paying service tax due to this inconsistency.

2. Allegation of willful suppression: The department alleged that the service provider willfully suppressed receipts of services provided to avoid paying service tax. Certain amounts were shown as receipts in the bank ledger without corresponding service tax payments.

3. Failure to produce documentary evidence: The respondents failed to produce documentary evidence for receipts shown in the bank ledger, claiming them to be incoming transfers or loans. The department considered these as service tax receipts.

4. Dropping of demand: The Commissioner (Appeals) dropped the demand against the respondent, leading to an appeal by the Revenue. The Revenue argued that the respondents failed to provide evidence justifying their claims and reconciling the balance sheet, bank account, and ST-3 returns.

5. Correctness of demands: The advocate for the respondent contended that the demands confirmed by the adjudicating authority were incorrect, barred by limitation, and based on presumptions. The onus of proving taxable receipts was placed on the department.

6. Reconciliation of accounts: The main issue revolved around reconciling the amounts in the ST-3 return, balance sheet, and bank ledger. The Commissioner (Appeals) highlighted the failure to properly reconcile income, debtors, creditors, bad debts, and credit notes to determine actual taxable receipts.

7. Onus of proving taxable receipts: The judgment emphasized that tax assessments cannot be based solely on assumptions. The department must provide sufficient evidence to prove that the receipts were related to taxable services rendered by the appellants.

8. Decision: The Tribunal upheld the decision of the Commissioner (Appeals), stating that the demands were based on assumptions without proper evidence. The department failed to establish the demands with sufficient proof, leading to the rejection of the Revenue's appeal. The respondent had provided explanations for the differences raised by the department during the investigation.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, and the Tribunal's decision based on the evidence and legal principles involved in the case.