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TMI Blog2019 (2) TMI 1563X X X X Extracts X X X X X X X X Extracts X X X X ..... om the record it is very clear that none of the records of appellant were taken into consideration for framing of charges that appellant had short paid service tax to the tune of around ₹ 8 crores and the said charges were framed only on the basis of information in the form 26AS - Revenue could have investigated into the nature of such transactions & should have established that the said transactions were in respect of provision of said service. Then alone the charges of short payment of Service Tax would have sustained. Appeal allowed - decided in favor of appellant. - APPEAL No.ST/70274/2018-CU[DB] - ST/A/70126/2019-CU[DB] - Dated:- 27-12-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Abhinav Kalra, Chartered Accountant for Appellant Shri Pawan Kumar Singh, Supdt (AR), for Respondent ORDER Per: Anil G. Shakkarwar The present appeal is directed against Order-in-Original No. 14/Commissioner/ST/Noida/2017-18 dated 22/12/2017 passed by Commissioner of Central Goods Service Tax, Noida. 2. Brief facts of the case are that the appellants were providing taxable services falling under the catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r payment recorded in 26AS would have been deposited in the previous year since service tax was payable on accrual basis while the same is reflected in 26AS on receipt basis. In such a scenario, service tax on same amount would be charged twice. Further, there may also be a case where on any particular payment TDS was deducted but the same was not liable to service tax as per the provisions of Finance Act 1994. Therefore, the contentions of the Ld. Commissioner that every payment that is recorded in 26AS is service income and hence liable to service tax, is baseless and lacks merit. The appellant relied on the following decisions of the appellate authorities in support of their contentions: Synergy Audio Visual Workshop Pvt. Ltd. v CST, Bangalore; 2008-TIOL-809-CESTAT-BANG; The Tribunal in this case following its earlier decision held that service tax payment cannot be confirmed on the basis of the amount shown in income-tax return and balance sheet or profit and loss account. Alpha Management Consultants Pvt. Ltd. v. CST Bangalore-2007-TIOL-386-CESTAT-BANG/2007(6) STR 181(Tri.-Bang) [para 4.1] in this case it was held that Service Tax cannot be recovered based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has nowhere in the impugned order in original under appeals or in the show cause notice issued in the present matter, challenged the CENVAT credit on grounds of legal eligibility of the same, which means that had the original invoices been presented to the Ld. Commissioner, 100% CENVAT Credit would have been allowed. Despite of all the details having been provided to and verified by the audit officers during the course of audit, wr.t. the CENVAT credit available, the Ld. Commissioner has not given the benefit of the same while computing the demand of service tax in the instant matter. In this scenario, the demand of service tax to the extent of INR 2,21,35,916/- relating to the amount of CENVAT credit claimed by the appellant but the benefit of which has not be granted by the Ld. Commissioner, should be allowed to sustain. 4. Heard the learned A.R. who has supported the impugned order. 5. After hearing both the sides and on perusal of record, we find that impugned show cause notice was issued solely on the basis of information obtained from Income Tax Authorities in the form 26AS for the financial year 2012-13 to 2014-15. For the sake of ready reference, para-15 and para- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 for willful nonpayment of Service Tax due to the government in a manner as prescribed under Rule 6 of the Service Tax Rules, 1994 read with the Section 68 (1) of the Finance Act, 1994. We also note that there were no other record of the appellant which were taken into consideration for entertaining a prima-facie view that appellant was required to pay short paid service tax of around ₹ 8 crores for the said period than the information that was available in returns in the form 26AS. In this regard we note that this Tribunal had an occasion to examine sustainability of demand raised only on the basis of form 26AS. It was held by this Tribunal in the case of Sharma Fabricators Pvt. Ltd. Vs Commissioner of Central Excise, Allahabad reported at 2017 (5) GSTL 96 (Tri.-All.) as follows:- 3. Heard the ld. Counsel for M/s. Sharma he has basically argued that the said Show Cause Notices were not issued by examining the books of account maintained by M/s. Sharma. The Show Cause Notices were based on the presumptions and third party information. He has argued that even when the payments were not made by the clients but the clients booked the expenditure in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the facts. Therefore, we hold that the said Show Cause Notices are not sustainable. Since the said Show Cause Notices are not sustainable, appeal bearing No. ST/890/2010 filed by M/s. Sharma is allowed and appeal bearing No. ST/949/2010 filed by Revenue is dismissed. Miscellaneous Applications also stand disposed of. Cross Objection also disposed of. From the record it is very clear that none of the records of appellant were taken into consideration for framing of charges that appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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