2022 (8) TMI 704 - AT - Service Tax

Clearing and Forwarding Agent Services - demand of service tax on the basis of information obtained from the Income Tax Department and the figures appearing in TDS statements appearing in Form 26AS - Extended period of limitation - HELD THAT - The very basis of the impugned demand is the figures appearing in the Income Tax Portal and the Profit and Loss account - It is also found that the Ld. Commissioner has duly noted the fact that the Appellant was duly audited by the Service Tax Department for the compliance up to the Financial Year 2013-14. Since the records have been duly audited, the demand cannot be raised for the same period on account of change in the opinion. Further, it is found that the Appellant had duly submitted the VAT Returns which have been recorded by the Ld. Commissioner in the impugned order. In the VAT Return for the Financial Year 2015-16, the Appellant has duly disclosed the sales turnover of Rs.8,13,46,124/- on which VAT has been duly paid, whereas the impugned demand has been raised considering the value of taxable services to be Rs.8,28,06,929/- by taking higher of the amount appearing in profit and loss account and the Income Tax Return. Similarly, for the Financial Year 2016-17, the value of taxable services have been considered to be Rs.8,96,52,728/- whereas the appellant has duly disclosed the sales turnover of Rs.8,79,88,828/- in its VAT Return on which VAT has been paid at applicable rate - it appears that the major demand has been computed on the sales turnover. Time Limitation - HELD THAT - There are no ingredient of fraud or suppression with an intent to evade payment of tax - the demand raised for the period up to March 2015 is completely barred by limitation and accordingly the demand is set aside. Further, since there is no element of fraud or suppression, the entire penalty amount is liable to be set aside. Demand pertaining to the Financial Year 2015-16 and 2016-17 - HELD THAT - By considering the reconciliation statements and the Chartered Accountant Certificate submitted by the Appellant before the Adjudicating Authority, as well as the VAT returns, there is no occasion to sustain the demand as raised in the impugned order. The instant appeal is allowed.

Summary

Issues:
Demand of Service Tax for the period 2012-13 to 2016-17 based on information from Income Tax Department and TDS statements. Appellant's contention of demand being raised on trading operations without considering VAT returns. Issue of limitation and penalty imposition.

Analysis:
The appeal was filed against the Order-in-Original confirming a demand of Service Tax of Rs.3,09,59,486/- along with interest and penalty for the period 2012-13 to 2016-17. The Appellant, a proprietorship firm registered for service tax under Clearing and Forwarding Agent Services, submitted that the demand was based on details from the Income Tax Portal without proper consideration of trading turnover and VAT returns. The Appellant ceased providing taxable services after discontinuing work as a C & F Agent, surrendering their service tax registration in 2004. The Ld. Commissioner confirmed the demand without addressing the trading turnover and VAT disclosures, solely relying on Income Tax Portal figures.

During the proceedings, the Appellant argued that the demand lacked merit as it didn't consider trading turnover, and the audit report was disregarded. The Ld. Commissioner upheld the demand based on Income Tax Portal data, alleging non-disclosure of income from taxable services. The Appellant highlighted discrepancies in the demand calculation, emphasizing the absence of taxable services post-2014. The Appellant's cooperation with authorities was evidenced by submissions of VAT returns, audited balance sheets, and reconciliation statements.

The Tribunal noted the demand's basis on Income Tax Portal and Profit and Loss account figures. It observed the Appellant's compliance up to FY 2013-14 and VAT return submissions. The demand calculation overlooked VAT disclosures, indicating a significant reliance on sales turnover. The Tribunal found no fraud or suppression warranting extended limitation period or penalties for the period up to March 2015, setting aside the demand and penalties. For FY 2015-16 and 2016-17, considering reconciliation statements and CA certificates, the Tribunal annulled the demand, allowing the appeal with consequential relief.

In conclusion, the Tribunal ruled in favor of the Appellant, setting aside the demand and penalties for lack of fraud or suppression. The decision highlighted the importance of considering VAT returns and trading turnover in service tax assessments, emphasizing fair justice and compliance with statutory requirements.

(Judges: SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER)