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TMI Blog2017 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is to point out any discrepancy to the notice for examination by the executive and it is the duty of executive to examine the records and examine the objection raised with reference to the records and facts of the case and take a view whether there is a sustainable case for issue of Show Cause Notice. Such vital aspects of framing of charges have been missing in the present case. The charges in the Show Cause Notice have to be on the basis of books of account and records maintained by the assessee and other admissible evidence. The books of account maintained by M/s Sharma were not looked into for issue of above stated two Show Cause Notices. Therefore, the transactions recorded in the books of account cannot be held to be contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (for short TDS Certificate ) the amount received by M/s Sharma during the period from January, 2004 to March, 2008 amounted to ₹ 45,94,48,238/- whereas total taxable value declared by M/s Sharma during the said period was totaling up to ₹ 22,01,75,988/-. Therefore, M/s Sharma were issued with a Show Cause Notice dated 20.04.2009 wherein it was alleged that M/s Sharma short paid Service Tax as reflected ST-3 returns to the tune of ₹ 2,67,78,854/-. Therefore, M/s Sharma were called upon to show cause as to why Service Tax amounting to ₹ 2,67,78,854/- should not be recovered from them under the extended proviso to Sub-section (1) Section 73 of the Finance Act, 1994. The said Show Cause Notice has listed the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 374) (-) 7,47,30,423 89,67,651 1,79,353 89,677 Total 45,94,48,238 22,01,75,258 23,92,72,980 2,62,24,255 4,64,922 89,677 M/s Sharma were issued with another Show Cause Notice dated 13.10.2009 wherein it was mentioned that on examination of records during the course of audit of the unit conducted by the Officers of Central Excise Commissionerate, Allahabad it was noticed that as per certificate of deduction of Service Tax under Section 203 of Income Tax Act, 1961(for short TDS Certificate ) issued by the clients during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate issued by clients of M/s Sharma. Both the said Show Cause Notices were contested by M/s Sharma. M/s Sharma elaborately explained the reasons for difference in the taxable value arrived at on the basis of TDS Certificate issued by the third party and actual consideration received by them. They further contested that the first Show Cause Notice dated 20.04.2009 was hit by limitation. The Original Authority decided the said two Show Cause Notices together through Order-in-Original No. (S. Tax-36 57/09)17 18 of 2010 dated 31/03/2010. The Original Authority confirmed the demand of Service Tax of ₹ 1,16,64,955/- and set aside the demand of Service Tax amounting to ₹ 2,42,54,864/-. The Original Authority also imposed penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated before the Original Authority various reason for discrepancies in the figures arrived at presuming the considerations received by M/s Sharma on the basis of such TDS Certificates and the figures in the returns. He has further relied upon this Tribunal s Final Order in the case of Alpa Management Consultants P. Ltd. Versus Commissioner of Service Tax, Bangalore reported at 2007 (6) S.T.R. 181 (Tri. Bangalore). He submitted that this Tribunal in the said case has held that demands, solely based on the Income Tax returns for liability of Service Tax under Finance Act, 1994 is not sustainable. In respect of appeal filed by Revenue ld. counsel for M/s Sharma has contended that the grounds of appeal are travelling beyond the Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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