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TMI Blog2024 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... 26AS has information about tax deducted/collected and deposited with the government. ITR is the consolidated statement of the assesse about his income, expenses tax payable during a financial year. Hence, the argument that demand is liable to be set aside as it is based on 26AS, is not correct. Otherwise also, The SCN is based not merely on ITR but also on Profit and loss account filed by the Appellant declaring their income and nature of receipt i.e Commission. Based on those documents it is held that there is no ambiguity with respect to the alleged income of appellant as commission which otherwise is not disputed by the appellant. The ITR figures are duly audited and declared by them to the Income Tax department. It is found that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission during the period 2014-15 (Oct-14 to mar-15).2015-16, 2016-17 and 2017-18. The Service Tax Liability on this amount comes to Rs. 10,17,746/- which is proposed to be recovered along with proportionate interest and appropriate penalty vide show cause notice (SCN) no. 61/2019-20 dt. 24-09-2020. The proposal has been confirmed vide order in original (0-1-0) no. 21/2021-22 dated 17.01.2022. In an appeal against the said order, the commissioner (Appeal) vide order in appeal (O-I-A) bearing number 41-2023-24 dated 12.05.2023 has set aside the demand for service Tax of Rs 1,12,733/- but has confirmed that appellant has short paid Service Tax of Rs. 9,05,013/-. The order of imposition of penalty has also been upheld modifying the quantum of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable with the department from the concerned year itself as the same is based on the filings done under Income Tax Act. Therefore, suppression is wrongly alleged by the department. It is not the case of department that the appellant has indulged in any fraud or has colluded or has given a wilful mis-statement as the figures given in Form 26AS on basis of which SCN has been issued was available for department s perusal right from the year in question. Thus, it is not be correct to say that appellant has evaded the service tax on the basis of the figures of Form 26AS Learned Counsel has relied upon the decision of this Tribunal in the case of Piyush Sharma Vs. Commissioner of CGST Excise, Patna I vide Final Order No.77332/2023 dated 17 th O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the O-I-A the order under challenge is prayed to be set aside and the appeal is prayed to be dismissed. 6. Having heard both the parties and perusing the record with the appeal memo it is observed and held as follows: The inquiry was initiated against the Appellant on the basis of ITR returns obtained from the income tax department. The appellant did not join the investigation inspite of summons issued. It was ascertained from the ITR records that the Appellants declared themselves as General Commission Agent in the ITR and reported income under the sub head Commission in their profit and loss account. 7. Thus admittedly the Appellant is a declared Commission Agent having Commission Income as the main source of income. Though additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 332/2023 dated 17.10.2023. The SCN was based only on 26AS. In Shresht leasing Finance Ltd Vs Commissioner C.ExSurat (Cestat Ahmedabad) demand was confirmed merely on basis of TDS statement(form 16 A) and in M/s Lord Krishna Real Infra Pvt Ltd Vs Commissioner of Customs CGST Noida, Final Order No 70126/2019 dated 27.12.2018 (Trib-All), it is 26As only based whereupon the Show Cause Notice was issued. 10. In the present case the demand has been raised on the basis of ITR as different from 26 AS. Thus, I observe that the facts in the instant case are distinguishable as discussed above. Above all the appellant is not registered with the Service Tax Department. The appellant has not filed any ST-3 returns with the Department. The appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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