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TMI Blog2023 (9) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the entire amount shown in the AS26 statements as amount received towards rendering of taxable service. From the records it is observed that no effort has been made by the department to ascertain whether the right to use the JCBs and Trucks have been transferred to the customers or retained by the Appellant. Without such ascertainment, it would not be possible to conclude whether the service would fall within the ambit of 'deemed service' or not. The Appellant relied on the decision of the Tribunal in the matter of M/S KUSH CONSTRUCTIONS VERSUS CGST NACIN, ZTI, KANPUR [ 2019 (5) TMI 1248 - CESTAT ALLAHABAD] and contended that the liability of service tax cannot be determined merely on the basis of Income Tax Returns / Form 26AS - From the decision cited, it is observed that the demands confirmed merely on the basis of the data available in the Income Tax Returns/AS26 Statements is not sustainable. It must be established that the amount shown in the AS26 statements are actually received in connection with taxable service rendered by the Appellant. As the department has not brought in any positive evidence to substantiate the allegation that the amounts received ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssumption and presumption by declaring that they have provided the taxable services of Supply of Tangible Goods Services and Goods Transport Agency Services . The demand of service tax has been confirmed along with interest and penalty by invoking the provisions of willful misstatement/ collusion/ suppression of facts etc., on the part of the Appellant. They contended that the demand in the instant case is barred by limitation, as the ingredients required for invoking the extended period, as envisaged in proviso to Section 73(1) of the Finance Act, 1994, are not available in this case. 4. The Appellant contended that the entire proceedings has been carried out on the basis of the information available in Form 26AS statement forwarded by the Income Tax Department. They submitted that the department has not adduced any evidence to substantiate the claim that these amounts were received towards rendering of 'taxable services'. No verification was conducted at their end to ascertain the nature of activities carried out by them and whether they are liable to pay service tax on these amounts. Further, these figures are included in their profit/Loss Account in the Balance Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have given the JCB and Trucks to the contractor and collected only hire charges viz., rent on the same on monthly basis. They did not provide any facility such as driver, repair and maintenance, fuel etc. Once the JCB Trucks rented out, the entire possession and control was with the Contractor and during the period of renting, there was no interference by them. Hence, the service rendered by them is not taxable under the said head. In this regard the appellant places reliance in the case of Praveen Engineering Works Vs. Commissioner of Service Tax, Raigad reported in 2014 (33) STR 719 (Tri.-Mumbai). 9. In order to attract levy of tax under Supply of Tangible Goods Service following three ingredients must be present:- a) the service essentially has to be in relation to supply of tangible goods to any person by any other person; b) There must not be any transfer of right of possession of the goods from the service provider to the service recipient; c) There must not be any transfer of effective control of the goods from the service provider to the service recipient. If all the above 3 conditions are fulfilled in a commercial transaction then only it would be liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supply of Tangible Goods Services and Goods Transport Agency Services. No verification was conducted by the department to ascertain the nature of activities carried out by them and whether they are liable to pay service tax on these amounts. 13. We find merit in the contention of the Appellant. The bills submitted by the Appellant indicate that they have raised monthly bills for 'Hire Charges for Trucks'. The impugned order concluded that in these Bills the Appellant has charged rent on the tangible goods namely, JCB and Trucks, on the basis of number of days of hire. Prior to 01.07.2012, such supplies were liable to service tax under the category of 'Supply of tangible goods' as defined under Section 65(105)(zzzzj) of the Finance Act, 1994. With effect from 01.07.2012, the transfer of goods by way of hiring, leasing, licensing or any such manner without transfer of right to use such goods has been declared as 'deemed service'. Accordingly, the impugned order has justified the demand of service tax by treating the entire amount shown in the AS26 statements as amount received towards rendering of taxable service. 14. We observe that prior to 01.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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