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TMI Blog2025 (1) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... in. The proposal was purely on the basis of assumption and presumption. Hence, there are no infirmity in the part of the order challenged by the department. Conclusion - Such a serious charge of evasion of service tax requires the Department to produce sufficient and tangible corroborative evidences and it cannot simply be based on presumptions and assumptions. The original adjudicating authority's decision to drop the demand for service tax on the miscellaneous income upheld, finding no evidence to support the department's claims. The appeal filed by the department is hereby dismissed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MRS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri Anand Narayan, Authorized Representative for the Appellant None for the Respondent ORDER The present appeal has been filed by the department to assail the Order-in-Original (O-I-O) No. 47-17-18 dated 22.03.2018 vide which part of the proposed demand of service tax has been dropped. The facts in brief, relevant for the purpose of present adjudication are as follows: 1.1 M/s Lotus Cons. Build Technocrat Pvt. Ltd., the respondent, is registered for providing / payment of Renting of Immovable Service, Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cab service and both service provider and service recipient are located in the taxable territory (i.e. in India), M/s Lotus appears liable to pay 100% service tax in terms of Section 68(2) of the Act read with Rule 2(1)(d)(i)(F)(a) of the Service Tax Rules, 1994 and Notification No. 30/2012-ST dated 20.06.2012 as amended being a service recipient and registered as a body corporate on the amount paid by them to the service providers under reverse charge mechanism for availing rent a cab service. 1.2 Based on the above said observations, the department alleged that the respondent was liable to pay the service tax under Forward as well as Reverse Charge Mechanism. From the scrutiny of respondent records for the financial year 2012-13 and 2015-16 the department quantified the amount of service tax payable by the respondent amounting to Rs.3,34,13,650/- for services relating to development of plots, Rs.1,55,194/- for providing Works Contract Services, Rs.74,16,000/- on the commission earned for services for sale and purchase of plots / the miscellaneous income declared to IT department and Rs.4,411/- for receiving rent a cab service. 1.3 With the above observations and the quantificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reflected in their accounts for the year 2012-13. Imposition of penalty under section 78(1) of the finance act 1994 equal to fifty percent instead of hundred percent of the amount of service tax confirmed for the period beyond 14.05.2015 has also been challenged. With these submissions the part order in original dropping the demand of Rs.74,16,000/- is prayed to be set aside. 4. Having Heard the Ld. DR and after perusing the entire record of the appeal we observe that the narrow compass of the present appeal is about the demand dropped by the original adjudicating authority with respect to miscellaneous income received by the respondent during the disputed period which was later disclosed to the income tax department. 5. We also observe that the original adjudicating authority has dropped the said demand with the following observations:- 4.20 Demand of service tax has simply been proposed because the Noticee did not submit documents relating to sale and purchase of land such as sale deed, registration documents or agreements. Therefore, in absence of documentary proof of purchase and sale of land, it has been inferred that the Noticee was engaged in the activity carried out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly, advice, consultancy or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management of real estate. 4.22 On going through the records, I find that there is no evidence to indicate that the Noticee has carried out any activity as mentioned in the clause (88) or (89) of Section 65 of the Finance Act, 1994 in so far as the miscellaneous income of Rs. 6 crore declared by them during the course of income tax survey is concerned. I observe that the charge of provision of services by the Noticee in the instant case is not at all based on facts and evidences. I am of the view that such a serious charge of evasion of service tax requires the Department to produce sufficient and tangible corroborative evidences and it cannot simply be based on presumptions and assumptions. Therefore, in absence of evidences, it cannot be alleged that the Noticee has rendered assistance to buyers and sellers of land in entering into transactions of purchase and sale of land and sellers of land and received consideration against provision of such services. In absence of total lack of evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Incometax Act, operate in two different fields. Without there being an independent enquiry by the concerned taxing authorities the demand made under the provisions of Central Excise Act cannot be incorporated as such, more so when the notice of demand has been modified by the adjudicating authority. In the case of Kipps Education Centre, Bathinda v. CCE, Chandigarh reported in 2009(13) S.T.R. 422 (Tri. Del.), it was held by this Tribunal that income voluntarily disclosed before the income tax authorities could not be added to the taxable value unless there is evidence to prove the same. In this case also, there is no evidence to show that the income disclosed is the part of taxable service. Hence I do not find any infirmity in the impunged order. Accordingly, stay application as well as the appeal are rejected. 7. This tribunal also followed the said decisions in the case of Commissioner of Income tax Trichy vs. Amman Steel and Allied Industries reported as 2015 (330) ELT 130 (Madras). In an another decisionin the case of Deltax Enterprises Vs. Commissioner of Central Excise -Delhi 2018 (10) G.S.T.L. 392 (Tri. Del.) the tribunal held as follows: - 4 Admittedly, the appellant di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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