2018 (1) TMI 112 - AT - Service Tax

Whether the adjudicating authority was correct in coming to conclusion as to appellant has short paid the service at liability during relevant period in question or otherwise? Held that - on perusal of records like the invoice raised by the appellant to various clients (including few governments agencies) it is found that the said Invoices are towards supply of various products viz single sheet calendars stickers and envelops and posters 3D embossed sheets Flute boards and form boards holdings etc. and the said invoices indicate discharge of applicable CST - VAT and some invoices also raised by the appellants are for display of the holdings on which applicable service tax is discharged - Surprisingly the adjudicating authority has not recorded any findings on this factual position. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Interpretation of service tax liability for advertisement agency services.
2. Compliance with directions from the Tribunal in Denovo proceedings.
3. Discrepancy between income tax returns and service tax liability.
4. Applicability of Service Tax based on actual payment received.
5. Consideration of factual evidence in determining service tax liability.

Analysis:

Issue 1: Interpretation of service tax liability for advertisement agency services
The appeal was against an Order-ln-Original regarding escapement of service tax by an appellant providing advertisement agency services. The revenue authorities alleged non-discharge of service tax liability for various services related to advertisement displays. The Tribunal considered whether the appellant was correctly held liable for service tax during the relevant period.

Issue 2: Compliance with directions from the Tribunal in Denovo proceedings
The appellant argued that the adjudicating authority did not follow the Tribunal's directions in examining the records. The Tribunal noted that the authority was directed to consider if the appellant undertook advertisement creation or merely executed client instructions. The authority's findings were based on the activities related to advertisement preparation and display, not solely on the income tax returns.

Issue 3: Discrepancy between income tax returns and service tax liability
The appellant contended that the demands were wrongly based on income tax returns, which differ from actual service payment receipts. The Tribunal agreed that the Income Tax Act required declaring accrued income, while the Finance Act mandated service tax on actual payment received. Citing legal precedents, the Tribunal found the demands based on income tax returns unsustainable.

Issue 4: Applicability of Service Tax based on actual payment received
The Tribunal emphasized the distinction between income shown in tax returns and amounts received for services. Relying on judicial decisions, the Tribunal held that demands solely based on income tax returns were not valid for service tax liability assessment. The Tribunal set aside the Impugned Order, stating it was unsustainable due to this discrepancy.

Issue 5: Consideration of factual evidence in determining service tax liability
The Tribunal observed that the adjudicating authority did not adequately consider factual evidence, such as invoices indicating the supply of printed materials for advertisement work. The Tribunal found merit in the appellant's argument that they were supplying printed materials based on client specifications, and the authority failed to address this crucial aspect in their decision-making process.