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TMI Blog2023 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to ascertain whether the amount mentioned in the Form 26AS was received on account of providing any taxable service by the Appellant.It is observed that the demand of Service Tax cannot be made solely on the basis of difference between Income tax return and 26AS Statement, as held by the Tribunal in the case of M/S KUSH CONSTRUCTIONS VERSUS CGST NACIN, ZTI, KANPUR [ 2019 (5) TMI 1248 - CESTAT ALLAHABAD] . The same view has been taken by the Tribunal, Kolkata, in the case of M/S LUIT DEVELOPERS PRIVATE LIMITED VERSUS COMMISSIONER OF CGST CENTRAL EXCISE, DIBRUGARH [ 2022 (3) TMI 50 - CESTAT KOLKATA] wherein it has been held that the figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 77(1) (a),(b), (c) and 77(2) of the Finance Act, 1994. Aggrieved against the impugned order of the Commissioner (Appeals), the Appellant preferred this appeal. 2. The Appellant submits that the demand in the instant case is barred by limitation. It is their contention that the entire proceedings has been carried out on the basis of information available in Form 26AS of Income Tax department. Since these figures are included in the Profit/Loss Account in the Balance Sheet, which is a public document and so there can be no suppression. Moreover, the Department has not adduced any positive evidence to show malafide intention or mens rea for evasion of Service Tax, under any particular head of Taxable Services. Since none of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the said difference and without establishing that the entire amount received by the Appellant as reflected in the said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services. 4. The Appellant also relied on the decision of Tribunal, Kolkata, in the case of Luit Developers Pvt. Ltd. vs. Commissioner, CGST bearing ST No. 75792 of 2021, vide Order dated 23.02.2022, wherein it has been held that the figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is evidence shown that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking extended period of limitation as visualized under proviso to Sec. 73(1) of the Act exists in this case and hence the demand confirmed in the impugned order by invoking extended period of limitation is not sustainable. I find merit in the argument of the Appellant. In the case of Aban Lyod Chiles Offshore Ltd. vs. CCE reported in 2006 (200) ELT 370 (SC), the Hon'ble Supreme Court has held that when all the facts were already within the knowledge of the Department, invoking extended period of limitation to demand duty is not justified. The Ld.A.R submitted about the non cooperation of the Appellant during the adjudication proceedings. But, I find that the Appellant questions the sustainability of the Notice itself. 7. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the Appellant. Thus, I hold that extended period cannot be invoked in this case to demand service tax on the Appellant. On perusal of the documents, I find that the entire demand has been raised beyond the normal period of limitation. In view of the discussions above, the demand of service tax by invoking extended period is not sustainable in this case. Accordingly, I hold that the demand is liable to be set aside on the ground of limitation. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. Accordingly, I hold that the impugned order is liable to be set aside. 8. In view of the above discussion, I set aside the impugned order on the ground of limitation and allow t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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