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TMI Blog2018 (9) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... t the penalty under both the sections cannot be imposed simultaneously - Penalty u/s 76 set aside. Appeal allowed by way of remand. - Appeal No.ST/444/2009-DB - A/11667/2018 - Dated:- 7-8-2018 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: S.J. Vyas (Advocate) For Respondent: Mr. L. Patra (AR) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant are engaged in providing taxable services under the category of Advertising Service and holding a valid service tax registration No. AADHR2726RST001. During the course of audit of the records of the appellants, it was observed that the income shown in the Profit and Loss accounts was exceeded by ₹ 5,27,45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing on behalf of the appellant at the outset submits that the demand was confirmed on the basis of the difference of gross income shown in the balance sheet and the gross value declared in the ST-3 returns. He submits that the method of calculation of the gross receipt was wrongly considered by the lower authorities in Annexure A to the SCN. He submits that the correct method of calculation of income was given in Annexure A to the letter of Chartered Accountant dated 26.11.2008 which was not properly considered by the adjudicating authority. He submits that at the relevant period, the service tax was chargeable only on the actual receipt of the gross value of service provided, whereas in the balance sheet entire billed value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed by the appellant, the demand cannot be time barred. 4. We have considered the submission made by both the sides and perused the records. We find that the Ld. Counsel has raised a very important issue that the demand was raised on the difference between the total income shown in the balance sheet and the gross value declared in ST-3 return. We find that during the relevant period the service tax was chargeable only on the actual receipt of the gross value towards the service provided. In the balance sheet the total income on the basis of billed amount is booked, even if the billed amount though recorded in the books of accounts but out of which a part amount is not received, the same cannot be charged to service tax. However, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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