Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2024 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (6) TMI 770 - AT - Service TaxIssues Involved: A. Determination of service tax not levied or not paid u/s 73 of Finance Act, 1994. B. Proper determination of the value of taxable services for charging service tax. C. Sustainability of the impugned order in law. Summary: Issue A: Determination of Service Tax Not Levied or Not Paid u/s 73 of Finance Act, 1994 The Tribunal noted that u/s 66B of the Finance Act, 1994, service tax is levied at 14% on the value of service. Section 67 specifies that the value should be the consideration in money charged by the service provider. The definition of service u/s 65B(44) and the negative list u/s 66D must be considered to determine the taxable value. Thus, the correct value of taxable service must be determined as the first step in arriving at the amount of service tax not paid or levied. Issue B: Proper Determination of the Value of Taxable Services The Tribunal observed that the Revenue concluded that a taxable value of Rs.4,54,64,051/- was not subjected to service tax based on data from an outside source without examining the appellant's records. No evidence was provided to establish that this amount was consideration received for providing service. The Tribunal referenced several precedent decisions, including Umesh Tilak Yadav (2024) 159 taxmann.com 336, Commissioner vs. Modern Road Makers Pvt. Ltd. (Appeal No. ST/86984/2021), and others, which held that demands based solely on differences between figures in ST-3 returns and income tax returns without examining the reasons for the difference are not sustainable. The Tribunal concluded that the show cause notice lacked a basis for arriving at the taxable value and was thus not sustainable in law. Issue C: Sustainability of the Impugned Order Since the show cause notice was deemed unsustainable, the Tribunal set aside the impugned order passed by the Commissioner (Appeals) and allowed the appeal. The Tribunal emphasized that the charges in the show cause notice must be based on the assessee's books of account and other admissible evidence, which was missing in this case. Additional Note on Concurring Order: Dr. Suvendu Kumar Pati, Member (Judicial), concurred with the findings, highlighting the lack of reference to the defense reply in the Commissioner's order and improper computation of the demand based on incomplete TDS data. He agreed that the appeal should be allowed by setting aside the order passed by the Commissioner (Appeals). Order Pronounced: The appeal was allowed, and the impugned order was set aside.
|