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TMI Blog2024 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... in the SCN apart from the figures purportedly taken from ITR. Just because the appellant was registered under the Courier Agency Services , is not conclusive that services have been rendered by him under the said category, without any documentary proof. The basis of calculating the tax demand in the absence of identifying the actual service provided and the tax rate applicable, is a serious lacuna in the SCN and the subsequent order. While the ITR could have triggered an enquiry into the non-payment of Service Tax, if any, by the appellant, it cannot be the basis of determining the value of service rendered during any period of time. Much less under the extended period of time, invoking fraud, suppression etc. without an iota of investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r imposing penalty under sections 78 and 77(2) of the Act and penalty under Rule 7C of the Service Tax Rules, 1994. After due process of law, the original authority confirmed the entire demand along with applicable interest and imposed penalty under sections 77 and 78. Aggrieved by the order, the appellant filed an appeal before Commissioner (Appeals) who vide the impugned order rejected the appeal except for setting aside the penalty imposed under sec. 77 of the Act. Hence this appeal. 3. Shri S. Satishchandrasekaran, Ld. Advocate appeared for the appellant and Shri Harendra Singh Pal, Ld. Authorized Representative for the respondent. 3.1 The Ld. Advocate stated that the adjudicating authority has only taken the difference between ITR and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. Therefore, the demand, penalty and interest as confirmed in the Order-In-Original and Order-In-Appeal is not maintainable. He relied upon a large number of Case Laws to substantiate their averments and prayed that the impugned order be set aside. 3.2 The Ld. AR has reiterated the points given in the impugned order and prayed that the appeal may be dismissed. 4. I have gone through the appeal memorandum along with the judgments cited and have heard the rival parties. I find that this is a case where the department has initiated action after obtaining the ITR of the appellant and comparing it with the STR. No investigation into the information received from the ITR is shown to have been attempted. No service rendered by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would involve fresh investigation into facts, which cannot be permitted. 6. I find that a similar matter was examined by the Division Bench of this Tribunal at Mumbai in Commissioner of CGST CE, Mumbai East Vs Mordern Road Makers Pvt Ltd., [Final Order No. 86160/2023, dated 28/07/2023]. The relevant portion is cited below; 5. We have carefully gone through the record of the case and submissions made. Right at the outset we have examined the show cause notice. The show cause notice dated 16.04.2019 states that the same is enclosed with two annexures. Annexure- I is work sheet. The work sheet states the turnover of the respondent for the year 2013-14 as reflected in income tax return and turnover reflected in ST-3 return as nil and the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly presumptive. Further, the difference in turnover in ST-3 return and income tax return could be on account of non-taxable businesses. So, unless Revenue examines the reasons for the difference, it cannot demand service tax blindly on the basis of difference in the turnover reflected in the two statutory returns. This Tribunal has time and again held as follows:- a) In the case of Lord Krishna Real Infra Pvt. Ltd. [2019 (2) TMI 1563 - CESTAT ALLAHABAD], it was held as follows:- Further, we find that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant, charges of short payment of service tax to the tune of 8 crores were made against the appellant. It was possible for Revenue to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove stated two Show Cause Notices. Therefore, 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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