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TMI Blog2024 (7) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Sheets of the appellant, as obtained from the Income Tax department indicate that during the period 2011-12 to 2014-2015, the appellant was engaged in providing the said taxable services. There is no contrary evidence that has been submitted by the appellant to hold otherwise - the Department has relied on the 26AS statement which is a statement that provides details of any amount deducted as Tax Deducted at Source (TDS) or Tax Collected at Source (TCS) from various sources of income of a taxpayer. This statement gives a consolidated record of every tax-related information associated with a PAN. Therefore, the veracity of the statement cannot be doubted. It is observed that it has been mostly contended by the ld. counsel to the appellant that the demand for the extended period is not sustainable as there was no intent to evade tax. At the outset, the contention of the ld. counsel that the show cause notice refers to suppression and not mis-statement of facts cannot be accepted - the appellant was aware of his tax liability and chose not to pay his tax correctly. In the instant case, the appellant did not cooperate with the investigations, failed to submit any documents to substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The department issued the show cause notice dated 20.02.2017 alleging that the appellant had not paid the due amount of service tax on manpower recruitment and supply service, and it was also alleged that the appellant had collected the service tax amount from their clients and did not deposit the same in the Government exchequer. The Commissioner, vide the impugned order confirmed demand of Rs. 2,21,40,531/-, interest as per section 75 of the Finance Act, 1994 along with penalty of Rs 10,000/- and Rs. 89,400/- under Section 77 of the Finance Act, 1994 and also imposed penalty of Rs. 2.21,40,531/-under Section 78 of the Finance Act, 1994. Being aggrieved of the aforesaid order-in-Original, the appellant is preferring this appeal. 3. The Learned Counsel to the appellant submitted that the SCN alleges suppression of facts whereas none of the other ingredients of proviso to section 73(1) viz., fraud, collusion, wilful misstatement, or contravention of any of the provisions of chapter V or of the rules made thereunder with intent to evade payment of service tax, has been alleged in the SCN. However, the adjudicating authority has given a finding that- the appellant also tried to suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (S.C.) has held that where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued right. Therefore, demand for any period that had become time-barred as on 13.05.2016 under the old provision of 18 months, could not be revived by the new provision of 30 months which came into effect on 14.05.2016. He further submitted that out of the demand confirmed in the order, the demand up to Sept., 2014 is time barred. The only demand that survives is for the period 01.10.2014 to 31.03.2015, against which the appellant had deposited Service tax amounting to Rs. 45,00,000/-. There being no suppression of facts and there being no finding of misstatement of facts , in the order-in-original, penalty under Section 78 was also not imposable. He also stated that the due date for filing ST-3 return for the period April-September 2011 was 25.10.2011 and for including the said period in the five year s extended period, the demand should have been issued prior to 25.10.2016, whereas the show cause notice in the present was issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time and the department was forced to collect the proof of evasion of service tax by the party from third party sources such as Income Tax Department. He further contended that the appellant had failed to respond to show cause notice and nor did the appellant appear for personal hearings granted to them, which also proves beyond doubt that the appellant has nothing to say their defence and they are in admittance of the charges levelled against them in the impugned show cause notice. The aforesaid non-co-operative attitude of appellant clearly shows their utter disrespect to the law of the land and their evasive nature. 4.1 The ld. AR further contended that during the period in question though the appellant was charging and collecting service tax from their clients but deliberately, intentionally and with a malafide intent failed to deposit the same to the government exchequer. Therefore, the contravention of the provisions of Finance Act 1994 and Rules made there under as alleged in the notice to show cause, have been correctly invoked. As regards the imposition of penalty under section 78, the ld. AR stated that the adjudicating authority has observed that the appellant k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to work under his superintendence or control. 5.2 As per the legal provisions prior to 1.7.2012, we note that the liability to pay the entire service tax was on the service provider. However, vide notification No. 30/2012 dated 20.06.2012, the service tax liability was shared (25%/75%) in case if any individual or HUF or partnership firm is providing supply of manpower service for any purpose to business entity registered as a body corporate. The adjudicating authority has held that the Form 26 AS/Balance Sheets of the appellant, as obtained from the Income Tax department indicate that during the period 2011-12 to 2014-2015, the appellant was engaged in providing the said taxable services. We find that there is no contrary evidence that has been submitted before us by the appellant to hold otherwise. We also note that there is a vast difference in the taxable value shown by the party in their ST-3 returns vis- -vis value of taxable services realized as calculated from 26AS statement and as shown in the Balance Sheet, which has not been satisfactorily explained by the appellant before the adjudicating authority. We also note that despite several opportunities, the appellant fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submit any documentary evidence to contradict the allegation of the department. We note that the Department has relied on the 26AS statement which gives a consolidated record of every tax-related information associated with a PAN. Therefore, the veracity of the 26AS statement cannot be doubted. This statement clearly establishes that the appellant was actively providing the said service during the relevant period, as is evident as tax on his income has been collected/deducted at source by his service recipient. This was not declared in the ST-3 returns by the appellant. It has been argued before us that the appellant calculated his service tax liability and paid Rs 45 lakh and has stated that he continued to pay tax on a regular basis. This clearly establishes that the appellant was aware of his tax liability and chose not to pay his tax correctly. In this context, we note that the Courts have consistently held that the parties seeking relief must approach the court with clean hands and disclose all material facts that may affect the decision. In the case of Harbans Lal Vs Mohinder Lal Others, the Hon ble High Court of Jammu Kashmir, on 14.01.2020, held as follows:- 15. That apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay service tax. Thereafter to appeal to this forum alleging that the demand was time barred, and the finding of suppression of facts was erroneous cannot be accepted. Learned Counsel relied on the Hon ble Delhi High Court s decision in the case of M/s Hotchand Jawaharmall vs UOI Others [1983(14) ELT 2197(Del)] to emphasise his point. We find that the Hon ble High Court has held that as follows: 5. ..This is clear admission on the part of petitioner that they had knowledge that the goods were being supplied by a party in Japan. This fact is stated in the invoice of the Easter Traders. Therefore, the knowledge of the Japanese party can be directly imputed to Eastern Traders. It can be fairly inferred that the petitioner had the knowledge of the transaction between various parties in question and had also the knowledge of the price of the goods shown in the sale notes and invoices from Messrs M. Teramoto Co. and Messrs Kaysons Corporation of Japan. I have no hesitation in holding that the statement as regards the value made by the petitioner was a mis-statement. We note that in the instant case, the appellant had failed to declare the correct value in the ST-3 returns, and the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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