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TMI Blog2023 (8) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome tax return was on account of provision of taxable service and by calculating 12.36% of that turnover, service tax demand was raised. The fundamentals of prosecution such as framing charges on the basis of admissible evidence is absent in issue of show cause notice. The present show cause notice is totally presumptive. Further, the difference in turnover in ST-3 return and income tax return could be on account of non-taxable businesses. So, unless Revenue examines the reasons for the difference, it cannot demand service tax blindly on the basis of difference in the turnover reflected in the two statutory returns. In the case of M/S LORD KRISHNA REAL INFRA PRIVATE LTD. VERSUS COMMISSIONER OF CUSTOMS, C.E. S.T., NOIDA [ 2019 (2) TMI 1563 - CESTAT ALLAHABAD] , it was held that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant, charges of short payment of service tax to the tune of 8 crores were made against the appellant. It was possible for Revenue to know the transactions between other parties appellant from form 26AS. Revenue could have investigated into the nature of such transactions should have esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... away calculating 12.36% of the said turnover, Revenue demanded service tax of Rs.292,87,51,316/- from the respondent by issue of show cause notice dated 16.04.2019. The respondent submitted their reply to the show cause notice. The reply was considered by the original authority and after going through the submissions, the original authority was satisfied that out of the turnover of Rs.2,369 crores, a turnover of about Rs.2,295 crores was on account of undertaking works contract for construction, operation, repair and maintenance of national highways and expressways for use by general public and the same were exempted from levy of service tax under Entry No.13(a) of Notification No.25/2012-ST dated 20.06.2012 and, therefore, dropped the demand of service tax to the tune of Rs.292,86,63,640/-. The original authority confirmed the demand of service tax amounting to Rs.87,676/- on commission received by the respondent and also on some income which was written off. The original authority also ordered for recovery of interest on confirmed service tax amount of Rs.87,676/- and imposed equal penalty under Section 78 of Finance Act, 1994 on the respondent. The original authority also impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice and that such show cause notice itself is not sustainable in law. Learned counsel for the respondent has submitted that the demand in the said show cause notice was without examination of books of account of the respondent and, therefore, the said show cause notice is bad in law. He has further submitted that there should have been investigation into entry of the transactions and Revenue should have established that the said transactions were in respect of provision of taxable service and, therefore, the demand raised in the show cause notice is not sustainable because this Tribunal has repeatedly taken a view that on the basis of difference in the turnover reflected in ST-3 returns and Form 26AS statement without examination of the reason for such difference and without establishing that the said difference was on account of the provision of taxable service, demand of service tax on such differential amount cannot be raised. He has relied upon the following case laws in support of his claim:- i) Lord Krishna Real Infra Pvt. Ltd. [2019 (2) TMI 1563 CESTAT ALLAHABAD] ii) Sharma Fabricators Erectors Pvt. Ltd. [2017 (7) TMI 168 CESTAT ALLAHABAD] iii) Kush C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [2019 (2) TMI 1563 CESTAT ALLAHABAD], it was held as follows:- Further, we find that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant, charges of short payment of service tax to the tune of 8 crores were made against the appellant. It was possible for Revenue to know the transactions between other parties appellant from 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. We find that Final Order of this Tribunal in the case of Sharma Fabricators Pvt. Ltd. (supra) is squarely applicable in the present case. We, therefore, hold that Revenue did not discharge its burden to prove short payment of service tax. We also hold that the said show cause notice dated 05.10.2016 is not sustainable. b) In the case of, Sharma Fabricators Erectors Pvt. Ltd. [2017 (7) TMI 168 CESTAT ALLAHABAD], it was held as follows:- Surprisingly the draft audit report was the relied upon document. It may be worth mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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