9911796707
TMI Blog2014 (2) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... TAFE was making payments to the appellant. Then, Revenue approached appellant in Nov2008 for details of service tax payment on such consideration received from TAFE. By this time, the appellant had taken out registration under service tax regime and started discharging service tax from April 2008. However, there was a dispute regarding tax liability pertaining to previous period. Appellant did not pay it immediately because TAFE had not paid service tax amount to the appellant. Later the appellant remitted this service tax amount of Rs.5,20,274/- and interest of Rs.1,59,598/- in May 2009. Subsequently, show cause notice dt. 23.4.2010 for the period 2004-05 to 2008-09 covering both the periods i.e. the period for which they were not register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax paid.This fact has been conceded by the Asst. Commissioner (Review) in their report C.No.IV/16/2011-Review dt. 22.1.2014. 5. The third issue is that an amount of Rs.24,548/- covered by bill No.323 dt. 29-03-08 and 325 dt. 31-03-08 received in the subsequent year was included in the financial year 2008-09. 6. Further he submits that disputed amounts other than the amount corresponding to receipt towards service tax payable were included in the ST-3 return for the year 2009-10 and service tax paid. However, these amounts were shown in the IT return for the year 2008-09 on an accrual basis and income tax was paid thereon. 7. It is submitted that if the above factors are taken into account, there is no duty liability more than what has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x portal. As per Form 26AS the gross amount paid has been shown as Rs.14,96,190/- and so it does not tally with the Profit and Loss account figure of Rs.14,85,516/-. Point 3 : The above amount of Rs.14,85,516/- is inclusive of Rs.15,047.50 and Rs.9500/- which pertains to the year 2007-08 and the other amounts in Form 16A is inclusive of Service Tax. As per the TRACES entry both the aforesaid amounts, i.e., Rs.15047.50 and 9500/- have been paid to the assessee in the Accounting year 2008-09 only and it has been shown in the Profit and Loss account on receipt basis. Point-4 : In the Show Cause Notice, the demand has been wrongly made by including the Service Tax amount, asthe amount shown in IT return is inclusive of Service Tax amount tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service receiver, i.e., TAFE during the Financial year 2008-09 is Rs.14,96,190/-. If it is taken as cum-tax value, the taxable value is Rs.13,31,604/-. As Form 26AS has been taken from the Income tax Portal, it should be taken as the authenticated figure and so the taxable value should be Rs.13,31,604/- and the service tax payable thereon works out to Rs.1,64,586/- (ST-Rs.159792/-, EC Rs.3,196/- and SHEC Rs.1598/-). Against this liability the assessee has paid Rs.1,61,397/- only. Hence the differential service tax yet to be paid by the assessee works out to Rs.3189 (ST Rs.3096, EC Rs.62 and SHEC Rs.31) Point 7 The gross taxable value as per ST-3 returns for the year 2008-09 is Rs.13,05,150/- and therefore no differential service tax is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) He further reiterates the finding of the adjudicating authority, Commissioner (Appeals), verification report as given by the Joint Commissioner in the matter of tax liability. (iii) He further submits that prayer of the appellant for waiver of penalty cannot be accepted because they have suppressed the fact of rendering services and even after commencement of the investigation they have not paid. They have not taken out registration. They have not come with clean hands. They have not furnished true details of amount received towards services rendered. (iv) Therefore, Ld. AR submits that extended period of time for the demand is sustainable and penalty under section 78 is payable. He relies on the following decisions :- 1. CCE, MUMBAI V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of show cause notice and department ought not to have issued SCN under section 73(3). Show cause notice has been issued because of some confusion based on income tax return was generated. The factual position is that the Appellant paid appropriate service tax with interest on moneys received for the year period prior to 2008-09 with delay and was paying service tax liability for 2008-09 correctly on receipt basis. 14. I have considered submissions on both sides. I find that the dispute in the matter of service tax liability is only to the extent of Rs.51,054/- after adjudication and first appeal. After reconciliation by Revenue vide report dated 22-01-2014 the disputed tax amount is Rs.3189/- only. The reason given by appellant is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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