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TMI Blog2024 (8) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... rces Pvt. Ltd. (supra) is not applicable, as in the said case, the documents were recovered from the office premises of another company, which not accepted as an admissible piece of evidence. Difference in the value, on the basis of ITR and the ST-3 Returns - mis-statement of facts - HELD THAT:- The Department has proceeded in the present case on the basis of the information received from the Income Tax Department relating to the income from the provision of services shown in the ITR as well as income on which TDS has been deducted and the gross amount of value of service shown in the ST-3 Returns was provided. The Tribunal in the case of VATSAL RESOURCES PVT LTD VERSUS C.C.E. S.T. -SURAT-I [ 2022 (7) TMI 718 - CESTAT AHMEDABAD] , following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 1994 for providing services related to fabrication, manpower supply, maintenance, construction, erection commissioning of cranes, etc. not covered under the negative list of services. The appellant was discharging the service tax liability and was filing service tax returns in Form ST-3. 2.1 As per letters dated 02.04.2019, 04.02.2019 and 22.05.2019, the Directorate General of Systems Data Management, New Delhi had received data from CBDT for the F.Ys. 2015-16 and 2016-17, which they analysed and made available to the field formations of the Central Excise Department on their web-site. In pursuance of the said data, the jurisdictional Superintendent of Central Excise had issued letter dated 16.12.2020 and e-mail dated 17.12.2020 to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944 [CEA] read with Section 83 of the Finance Act, 1994 [The Act] is not available to the Department. Therefore, the burden of proof is on the Department to prove that the documents relied in this case were related to the appellant and that any taxable services were actually provided by the appellant. The Department has not conducted any investigation in this regard. He further argued that the service tax has to be levied in terms of Section 66B of the Act on the value of the services and the service tax cannot be levied on the income of the service provider, therefore, the demand is not sustainable. On the issue of suppression of facts, the learned counsel for the appellant referred to the decisions on the principle that mis-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious security deposits in tenders. Thus, the Director of the firm had admitted the difference in the value shown in the ITRs and ST-3 Returns and he clarified that the security deposit, which has been included, created the difference in the taxable amount and the service amount. 8. From the records of the case, I find that the appellant has not cooperated with the Department, once allegations were made on unearthing the details from the income tax records. The submission of the appellant is that neither the letter nor the e-mail has been received by them, which does not seem to be acceptable. May be the letter is not received but there is no scope for the email to have not been received by the appellant. During the course of hearing, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is on the truthfulness of the documents. The reliance placed by the appellant on the decision in Vatsal Resources Pvt. Ltd. (supra) is not applicable, as in the said case, the documents were recovered from the office premises of another company, which not accepted as an admissible piece of evidence. 10. The next submission on the difference in the value, on the basis of ITR and the ST-3 Returns, the same is merely mis-statement of facts, relying on the decision of the Delhi High Court in Hotchand Jawaharmall Vs. Union of India and Others [1983 (14) ELT 2197 (Delhi)] and of the Tribunal in Garden Reach Ship Builders Engineers Ltd. Vs. CCE [1989 (42) ELT 506 (Tribunal)], where the department s plea of declaring lesser value in the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice shown in the ST-3 Returns was provided. The Tribunal in the case of Vatsal Resources Pvt. Ltd. (supra), following the earlier decisions in line, observed that by relying on the TDS/26-AS statements, the demand of service tax under the Service Tax Act cannot be made. There is no quarrel to the settled principle that amounts shown in the ITRs or Balance Sheets are not liable for service tax, however, here the conduct of the appellant cannot be ignored as he failed to provide the documents when asked for by the Department. He cannot now turnover and say that there was no investigation. However, the difference in valuation was accepted and admitted by the Proprietor and hence nothing remained, as it is a settled principle that what has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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