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TMI Blog2024 (10) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... the view taken by Bench of larger quorum / strength, in a case whose ratio covers the legal issue involved in the impugned lis, more so when it is based on the precedence of earlier judgments on the matter. Having found the impugned order to be based on assumptions and presumptions without examining the books of accounts etc. and is liable to be set aside, the question of extended period, penalty etc. does not arise. The impugned order is set aside - appeal allowed. - SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Shri S. Satish Chandrasekaran, Advocate for the Appellant Shri Harendra Singh Pal, Authorized Representative for the Respondent ORDER This appeal is filed against Order in Appeal No. 233/2023 (CTA-I) dated 24.8.2023 passed by the Commissioner (Appeals I), Chennai (impugned order). 2. Brief facts of the case are that the appellant is providing services under the category of Cleaning Services. The department after obtaining data from Income Tax Department for the financial year 2015 16 compared the service income declared in the Income Tax return with the service income declared under the Service Tax return for the said period. The appellant had declared service income of Rs.21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Pvt. Ltd., Va, Commissioner of COST Bhiwandi in Final Order No. 85569/2024 Dated 10/06/2024. He prayed that the Tribunal may be pleased to set aside the impugned Order. 3.2 The Ld. AR reiterated the points given in the impugned order. 4. Heard the Ld. Counsel for the appellant and the Ld. AR for revenue representing the contesting parties. I have also perused the Appeal Papers, and the judgments cited. The department s order mentions by the appellant does not carry a date, nor was a copy handed over and hence could not be examined. I find that it is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the Revenue. [See: K.P. Varghese vs The Income Tax Officer, Ernakulam. Dated 04/09/1981 (1981 AIR 1922, 1982 SCR (1) 629)] 5. The case at hand shows that the SCN was issued on assumptions and presumptions and hence cannot be sustained. A similar matter was examined by a Division Bench of this Tribunal, in Balaji Insulations India Pvt. Ltd. (supra) which covers the legal issues involved in this case. Relevant portion of the order is extracted below. 6. We examine further the charges levelled as stated above are sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent has shorted reported turnover in their ST-3 return to the extent of difference stated in Annexure-I. The entire show cause notice nowhere examines as to on what account the turnover has taken place. The said show cause notice was issued without examining the activity of the respondent and without examining the reason for difference in turnover reported in income tax return and ST-3 return. It was presumed in the show cause notice that the entire turnover reported in income tax return was on account of provision of taxable service and by calculating 12.36% of that turnover, service tax demand was raised. The fundamentals of prosecution such as framing charges on the basis of admissible evidence is absent in issue of show cause notice. The basic of any proceeding is to frame charges on the basis of assessee s record and establish that the assesse has short paid calculated and pre-determined amount of service tax and then issue them a show cause notice calling for their explanation as to why the stated amount of service tax should not be recovered from them. The burden of proof is on Revenue to establish that the alleged service tax was short paid by the assesse. Unless su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the transactions recorded in the books of account cannot be held to be contrary to the facts. Therefore, we hold that the said Show Cause Notices are not sustainable. Since the said Show Couse Notices are not sustainable, appeal bearing No.ST/890/2010 filed by M/s Sharma is allowed and appeal bearing No. ST/949/2010 filed by Revenue is dismissed. Miscellaneous Applications are also stand disposed of. Cross Objection also disposed of. c) In the case of Kush Constructions [2019 (5) TMI 1248 CESTAT ALLAHABAD], it was held as follows:- After hearing both the sides duly represented by Shri A.K. Singh authorized representative of the appellant on behalf of the appellant and Shri Shiv Pratap Singh learned A.R. on behalf of the Revenue, we note that through impugned order service tax of Rs.93,000/- was confirmed along with equal penalty. On perusal of record, we note that the appellants were registered with the Service Tax Department and also they were filing ST-3 returns. Revenue has compared the figures reflected in the ST-3 returns and those reflected in Form 26AS filed in respect of the appellant as required under the provisions of Income Tax Act, 1961. We note that without furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para-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 been short levied or which has 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 consideration received by the appellant out of the activity which has to satisfy definition of service under sub-section (44) of Section 65B of Finance Act, 1994. Such type of examination of the facts and arriving at the prima facie view that the appellant had received the consideration by providing service is missing in the show cause notice. We, therefore, hold that the said show cause notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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