9911796707
TMI Blog2024 (11) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... ever no cash receipts has been found by the department from the tenants HELD THAT:- Burden of proof is on the Revenue and same is required to be discharged effectively. Without corroborative evidence only on the basis of statements of few tenants it cannot be concluded that the appellant has collected the part of rent in cheques and balance is taken in cash. In the present matter tenants nowhere produced any records/piece of paper in support of their statement. The only oral statements of service recipient cannot be accepted as admissible piece of evidence. No cash receipts has been relied upon by the department, no financial flow back has been relied upon by the department for the alleged collection of rent in cash, no rent agreement has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culating the liabilities against the appellant. We, therefore, reduce the demand of Service tax from Rs. 25,81,955 to Rs. 9,52,944/- together with interest and remaining demand is set aside. Penalties imposed - We find that the appellant in the present matter not has disputed the liability of services tax i.e. reduced amount as above and has admittedly paid the service tax well before the issuance of show cause notice. In these circumstances, we do not find that there was any mala fide on the part of the appellant. Therefore, benefit of Section 80 should be extended to the appellant and penalties imposed by the Ld. Adjudicating Authority are set aside. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. RAJU , MEMBER ( TECHNIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner confirmed the demand of Service tax of Rs. 25,81,955/- and ordered for appropriation of Rs. 12,00,000/ -deposited by appellant. He also imposed the penalty under Sections 77 and 78 of the Finance Act, 1994. In appeal, the Ld. Commissioner (Appeals) vide impugned order-in-appeal dated 26-6-2015 has upheld the adjudged demand. Hence, the present appeal before the Tribunal. 2. Shri Vipul Khandhar, Learned Chartered Accountant appearing on behalf of the Appellant submits that in the present matter department alleged that the Appellant has received the rent in excess of the rent booked in the books of accounts on the basis of four tenants' statements out of total tenants. Accordingly, differential value and service tax has been demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value on the basis of statements of persons. Department rely on the statements of tenants of shops in Radha Krishna Textiles Markets and statements of Shri Jerambhai Patel. The persons admitted in their statements that Appellant have collected rent in cash from the tenants. We find that, it is settled law that though the admission is an important piece of evidence but it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. We also note that there are numerous decisions of the Tribunal laying down that such admission of persons, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and same is required to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of rent received from each tenant and shops during the disputed period before revenue and both Adjudicating authority. However, department has calculated the demand of services tax on all the shops for whole periods without verifying the details that whether the said shops has been given on rent during the whole disputed period or not; whether shops has been given on rent or sale basis; what is the actual rent recoverable or received by the appellant; how many months occupant s have been holding the shops as a tenant. We noticed that in the present matter revenue has not considered the proper facts while calculating the liabilities against the appellant. 4.2 After considering the above facts and details of quantification of rent produced ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
