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TMI Blog2024 (6) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... such value should be the value of taxable service. Clause (44) of Section 65B of Finance Act, 1994 has provided for definition of service and it has elaborately dealt with a list of activities which shall not be included in such definition - while determining value of taxable service under Section 67 ibid, such aspect as to the activities which are covered by negative list and activities which are mentioned in the definition of service as those which are not covered by such definition becomes important - for arriving at amount of service tax not paid or not levied arriving at correct value of taxable service which has not suffered service tax needs to be determined as the first step. Whether the value of taxable services for charging service tax is properly determined during the proceedings of this case? - HELD THAT:- In the present case the charges were framed in the show cause notice for arriving at taxable value of Rs.4,54,64,051/- without examining the books of account and records maintained by the appellant and without quoting any admissible evidence for making out a prima facie case. It is noted that in the case of M/S KUSH CONSTRUCTIONS VERSUS CGST NACIN, ZTI, KANPUR [ 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no list of documents based on which the said show cause notice was relied upon. Appellant vide letter dated 17.09.2020 submitted copy of balance sheet, profit and loss account and copies of ST-3 returns filed for the period from April 2013 to March 2014. Appellant submitted their reply dated 04.02.2021 to the said show cause notice along with copy of sale/purchase sample bills, copy of party ledgers, copy of 26AS statement, copy of contract agreement for the work undertaken and reconciliation statement of amounts which were not liable to service tax. The said show cause notice was adjudicated through order-in-original dated 26.03.2021 issued on 13.04.2021. Through the said order, original authority confirmed the demand of service tax of Rs.38,49,561/- and imposed penalty of equal amount under Section 78 of Finance Act, 1994 and ordered the appellant to pay interest on the confirmed service tax. Aggrieved by the said order, appellant preferred appeal before Commissioner (Appeals). Learned Commissioner (Appeals) through impugned order-in-appeal dated 20.01.2022 rejected the appeal filed before him. Aggrieved by the said order, appellant is before this Tribunal. 2. Heard the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. f. Kush Construction 2019 (5) TMI 1248 CESTAT All. Learned counsel has submitted that it is no more res integra that only on the basis of difference between figures reflected in ST-3 return and the income reflected in income tax return, demand of service tax on differential value cannot be determined unless the assessee s records are scrutinized and on the basis of the activities of the assesse unless it is established that a particular consideration was received for providing service and the same was not covered in ST-3 return, demand cannot be raised. He has submitted that since the show cause notice is not sustainable, appeal should be allowed. Further, he has also submitted that the demand is barred by limitation since Revenue could not establish any of the ingredients for invocation of extended period nor Revenue could establish intention to evade payment of service tax. 3. Heard the learned AR. He has supported the impugned order. 4. We have carefully gone through the record of the case, submissions made and relied upon case laws. There are three issues for determination by us A. Whether for determination of service tax not levied or not paid under the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We examine further the charges levelled as stated above are sustainable or not. We will examine them with reference to the precedent decisions of this Tribunal relied upon by learned counsel for the appellant. For the sake of ready reference, we reproduce below para 4 of final order of this Tribunal in the case of Umesh Tilak Yadav reported at [2024] 159 taxmann.com 336 CESTAT MUMBAI:- 4. We have carefully gone through the record of the case and submissions made. The demand was raised invoking the provisions of sub-section (1) of Section 73 of Finance Act, 1994. The said provision of Finance Act empowers Revenue for recovery of service tax which has not been levied or which has not been paid or which has not been short levied or which has not been short paid or which has been erroneously refunded. Therefore, the first step for Revenue is to establish that a specific amount to be demanded through show cause notice by invoking the said provision is service tax either not paid or short paid or not levied or short levied. Therefore, it is essential to establish that the value on which such service tax is calculated is the value under Section 67 and the same is derived from the consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the alleged service tax was short paid by the assesse. Unless such burden of proof is discharged by Revenue, such show cause notice cannot sustain. The preset 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. This Tribunal has time and again held as follows:- a) In the case of Lord Krishna Real Infra Pvt. Ltd. [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of Income Tax Act, 1961. We note that without further examining the reasons for difference in two, Revenue has raised the demand on the basis of difference between the two. We note that Revenue cannot raise the demand on the basis of such difference without examining the reasons for said difference and without establishing that the entire amount received by the appellant as reflected in 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. We, therefore, do not find the said show cause notice to be sustainable. In view of the same, we set aside the impugned order and allow the appeal. 6. We, therefore, hold that the present show cause notice is totally presumptive. Therefore, we do not find any infirmity in the order-in-original to the extent that the demand of service tax of Rs.292,86,63,640/- is dropped by the original authority. Insofar as the confirmation of demand of service tax of Rs.87,676/- and its equal penalty are concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice. We, therefore, hold that the said show cause notice dated 26.06.2020 is not sustainable in law 8. Hence, in view of irregularity in the Show cause and the nonsustainability of demand purely on the basis of difference between ST- 3 return and Income Tax returns of any other period, without any further examination to establish that the difference is on account of consideration received towards discharge of services, the following order is passed. THE ORDER 9. The appeal is dismissed and the order passed by the Commissioner in Order-in-Original No. 45/SN/COMMR-Audit- III/CGST CEX/2021 vide order dated 30.03.2021 is hereby confirmed. Further, we also note that the final order of this Tribunal in the case of Sharma Fabricators Erectors Pvt. Ltd. reported at 2017 (7) TMI 168 CESTAT Allahabad was affirmed by Hon ble Allahabad High Court through its order reported at 2019 (22) GSTL J166 (All.). 8. This Tribunal has held in the above stated case of Sharma Fabricators Erectors Pvt. Ltd. that the charges in show cause notice have to be on the basis of books of account and records maintained by the assessee and other admissible evidence. The said decision of this Tribunal has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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