2009 (7) TMI 104

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..... that the demand of tax cannot be sustained on the basis of mere presumption.
Shri P.K. Das, Member (Judicial) (Final Order Nos. 720-721/2009-SM (BR) dt. 13.7.2009 certified on 3.8.2009 in E/CO/26-27/2009 and Appeal Nos. ST/852-853/2008) Shri S.N. Srivastava, SDR for Appellants. Shri Jitender Mohan, Consultant for Respondents. Per P.K. Das: Revenue filed this appeal against Order-in-Appeal No. 503-504/CE/CHD/08 dated 29.09.2008, whereby both the adjudication orders were set aside. 2. The relevant facts of the case as per record, in brief, are that the respondents were engaged in providing taxable service of "Pandal and Shamiana Service". On 6.1.2006, Income Tax Officers conducted survey whereby the respondents No. 1 Bindra Tent Sto .....

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..... nt accumulated to earlier six years. He also submits that there is no material available that the said amount is related with the Pandal and Shamiana services. He also submits that the Service tax was introduced on 10.09.2004 and the respondents deposited the amount of tax in connection with the services along with interest, which was appropriated by the Original Authority. 5. After hearing both the sides and on perusal of the records, it is seen that the respondents surrendered the amount to the Income Tax Department during the survey on 6.1.2006. It was explained that whenever surrender of amount was made under the Income Tax Act, it is added to the income in the Assessment Year 2005-06 (relevant to the previous year) for the purpose of .....

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..... hese amounts they had deposited Service Tax along with interest. The allegation of the revenue that since the appellants had no other source of income except the service provided by them is an assumption and not a legally sustainable evidence. It has to be supported by evidence, which is not forthcoming in this case. The burden lies on the department, which is alleging evasion of Service Tax and the same has not been discharged." 6. I find that the entire amount of tax is based on the amount surrendered by the respondent to the Income Tax Department. No inquiry in the nature of recording of statement and otherwise was done. It is seen that the respondents had given an explanation that the amount was accumulated income of the earlier years .....

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