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TMI Blog2025 (3) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in terms of Notification No.25/2012-ST dated 20.06.2012, cannot be extended to the appellant. 2. The Appellant submits that they have provided works contract services to Military Engineering Services (MES), Ministry of Defense, Government of India. The said services are exempted from payment of whole of service tax vide Entry No. 12(a) of the Notification No. 25/2012 - Service Tax dated 20.06.2012. The relevant pat of the said notification is extracted below: - "12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a) A civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession' (b) ..." 2.1. The appellant submits that the said exemption was withdrawn vide Notification No. 6/2015-ST dated 01.03.2015 wherein Entry 12(a) was omitted. The exemption was thereafter restored, with certain conditions, vide Notification No. 9/2016-ST dated 01.03.2016 wherein a New Entry was inserted i.e. Entry No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Bokaro - I bearing ST/75604 of 2022 wherein it has been held that the demands confirmed merely on the basis of the data available in the Income Tax Returns/26AS Statements is not sustainable. It must be established that the amount shown in the 26AS statements are actually received in connection with taxable service rendered by the Appellant. 2.5. The appellant further submits that the comparison of information available in the 26As and Income Tax returns are made with GSTR 1 for the period from July, 2017 to March 2018 also, wherein the payments received during the period from July, 2017, to March, 2018, were also construed to be taxable supplies during the said period. The Learned Adjudicating Authority failed to appreciate that such amounts reflect merely the payment received and cannot be construed as outward supplies since such payments have been received in lieu of contracts which were entered into prior to 01.03.2015 against which payments were being released as and when some portion of the works under contract was being completed. The appellant submits that the Learned Adjudicating Authority demanded service tax from the Appellant solely on the basis of the data pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, ST demanded. 13. _ _ _ 3090000 No work order or payment certificate submitted therefore, ST demanded. For FY 2017-18 (basis payment credited over the period from April, 2017 to March, 2018) 14. _ _ _ 932000 No work order or payment certificate submitted therefore, ST demanded. 15. _ _ _ 2850000 Do 16. _ _ _ 1950000 Do 2.8. With respect to Serial Nos. 1 to 11 of the above table, the Ld Adjudicating Authority has taken the amount credited as per 26AS as the sole figure and has adjusted the same against all contracts which showcases that the Authorities failed to appreciate that such payments were not in respect of all contracts but with respect to contracts which were completed and against which invoices were issued by the Appellant for such payment. Since the payments were credited in the disputed period, it was simply assumed by the authorities that the payments were made for contracts entered into in such periods. 2.9. With respect to serial nos. 4 to 11 in the table supra, the appellant submits that all such contracts have been entered in the FY 2017-18 and majorly after 01.07.2017. After such date, only GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged service tax at the rate of 15% on the alleged taxable value, whereas, the Appellant providing original works to the MES, the rate of service tax ought to have been on 40% of the entire contract value instead of being calculated on the entire contract value and as such, the demand would have reduced drastically. 2.13. The appellant submits that the entire demand confirmed in the impugned order is barred by limitation. It is their submission the extended period can be invoked, only when there is willful misstatement or suppression of facts in the hands of the appellant. In the present case, the Show Cause Notice was issued on the basis of materials available on record from the returns furnished by the appellant and not on account of any discovery of new facts by the department. Hence, the entire demand confirmed by invoking extended period of limitation is not sustainable. In this regard, the appellant relied on the following judgments of the Hon'ble Calcutta High Court. (i) 2022 (382) ELT 188 (Cal.) Commissioner of C.Ex Vs. Hindustan Cable Limited (ii) 2023 (72)GSTL 361 (Cal.) Larsen &ToubroLtd. Vs. Asstt. Commr. S.T. Commissionerate, Div-III, Kolkata&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below: 16. The Appellant relied on the decision of the Tribunal in the matter of Kush Constructions Vs. CGST NACIN reported in 2019 (24) G.S.T.L. 606 (Tri.-All.) and contended that the liability of service tax cannot be determined merely on the basis of Income Tax Returns / Form 26AS. The Appellant also relied on the decision of the Tribunal in the case of M/s Luit Developers Private Limited Vs. Commissioner of CGST & Central Excise, Dibrugarh, wherein this Tribunal has held similar view that the demand cannot be based on AS26 statement received from Income Tax department, without any corroborative evidence. 17. From the decisions cited above, we observe that the demands confirmed merely on the basis of the data available in the Income Tax Returns/AS26 Statements is not sustainable. It must be established that the amount shown in the AS26 statements are actually received in connection with taxable service rendered by the Appellant. As the department has not brought in any positive evidence to substantiate the allegation that the amounts received are towards rendering of taxable service liable for service tax, we hold that the demand confirmed in the impugned order is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence only GST could be charged upon such contracts and there could not have been any liability of Service Tax. For the contracts mentioned in serial nos. 12 and 13 of the above table, the figures have been taken from the 26AS without any verification whether such receipts are with respect to any taxable service rendered by the appellant. We observe that all the payments received during the period from July 2017 to March, 2018 have been construed as amount received for the taxable supplies rendered during the said period. In this regard, we observe that payments received during the period from July 2017 to March, 2018 is outside the scope of Service tax as GST is liable to be paid for the amounts received during the said period. Thus, we observe that there cannot be any demand made under service tax upon receipt of such payments. 5.4. We observe that for the purpose of computation of their service tax liability for the financial year 2017-18 (till June, 2017), the Learned Adjudicating Authority has taken the entire amount received by the Appellant during the period April 2017 to March 2018, as per 26AS as the taxable value, whereas, service tax was leviable only for the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee and the show-cause notice is not on account of any discovery of new facts by the (2015) 15 SCC 312 CEXA NO. 29 OF 2001 department either by conducting an inspection or based on intelligence. Therefore, the Tribunal was right in holding that the extended period of limitation could not have been invoked by the authority. 5.7. We find that the same view has been taken by the Hon'ble Calcutta High Court in the case of 2023 (72)GSTL 361 (Cal.) Larsen & Toubro Ltd. Vs. Asstt. Commr. S.T. Commissionerate, Div-III, Kolkata , wherein it has been observed as under: 16. The next aspect is whether the extended period of limitation could have been invoked. The disputed period can be divided into two the first of which being from March 2008 to March 2012. For this period, the show cause notice for the periods from March 2008 to March 2011 have all been issued after a long delay as the show cause notices were issued on 17.04.2013. The said show cause notice also covered the period from April 2011 to September 2011 and October 2011 to March 2011 but for such period the show cause notice was within the time permitted. The question would be whether extended period of ..... 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