2020 (1) TMI 370 - AT - Service Tax

Demand of service tax for differential amount - photography service - demand on the ground that the figures shown in ST-3 Returns are mis-matching with the figures in the receipts shown in the balance sheet - period 2006-07 and 2007-08 - HELD THAT - The Revenue failed to prove that the miscellaneous receipts shown by the appellant are the part of photography service. It is mere an assumption that miscellaneous receipts are the part of photography service - Without any evidence and record, on miscellaneous receipts shown by the appellant in their balance sheet, the service tax cannot be demanded. In the absence of any evidence placed on record by the Revenue, demand of service tax is not sustainable against the appellant - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Demand of service tax based on mismatch in ST-3 Returns and balance sheet figures; Whether miscellaneous receipts shown in balance sheet are part of photography service; Burden of proof on Revenue to establish service tax liability based on evidence.

Analysis:
The appellant contested a demand of service tax for a differential amount due to discrepancies between figures in ST-3 Returns and balance sheet receipts. The appellant, engaged in photography services, had shown miscellaneous receipts on the balance sheet for 2006-07 and 2007-08, leading to the service tax demand. The appellant argued that mere inclusion of miscellaneous receipts in the balance sheet does not warrant service tax, citing a precedent from the Hon’ble Punjab & Haryana High Court. Conversely, the Revenue contended that the appellant failed to explain the nature of the miscellaneous receipts, indicating they were part of the photography service. After hearing both parties, the Tribunal found that the Revenue did not provide sufficient evidence to link the miscellaneous receipts to the photography service. Relying on a previous case, the Tribunal emphasized that without concrete evidence, the service tax demand based on assumptions was unjustifiable. Consequently, the Tribunal set aside the impugned order, ruling in favor of the appellant due to the lack of evidence supporting the service tax liability.

In a separate judgment cited within the main case, the Tribunal addressed a similar issue where the Revenue attempted to attribute an amount surrendered to the Income Tax Department as taxable income related to Mandap Keeper Services. The Tribunal highlighted the necessity for the Revenue to establish evasion of service tax and prove that the surrendered amount represented proceeds of services provided by the assessee. Notably, the Tribunal criticized the Revenue for lacking knowledge about the status of a previous order followed in the case, emphasizing the importance of responsible representation by the department. Ultimately, the Tribunal upheld the principle that without concrete evidence presented by the Revenue, the demand of service tax could not be sustained against the appellant, leading to the appeal being allowed with consequential relief.

These judgments underscore the critical role of evidence in establishing service tax liability, emphasizing the burden on the Revenue to substantiate claims with factual support. The decisions highlight the necessity for a clear nexus between income sources and taxable services, cautioning against arbitrary assumptions in tax assessments. Additionally, the judgments stress the importance of responsible representation by the Revenue, underscoring the need for thorough knowledge and diligence in legal proceedings to ensure fair and just outcomes.