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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 ..... hdrawn with prospective effect and hence, the benefit of Entry 12 in terms of Notification No.25/2012-ST dated 20.06.2012, cannot be extended to the appellant. However, it is found that the appellant has received the consideration for the contracts entered prior to 15.03.2015 also during the period under dispute, but the adjudicating authority has not allowed the exemption available to them and considered the entire amount as taxable value received during the period under dispute, which is legally not sustainable. Whether the demand for service tax based on the income reflected in Form 26AS and Income Tax Returns is legally sustainable without corroborative evidence linking the income to taxable services? - HELD THAT:- The Ld. adjudicating authority has construed all the receipts during the period as amount received in connection with taxable supplies during the said period. However, it is observed that the Learned Adjudicating Authority failed to appreciate that such amounts reflect merely the payment received during the period. It cannot be construed as outward supplies since such amount could have been received in lieu of contracts which were entered into prior to 01.03.2015 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during April 2017 to March 2018 as taxable, whereas service tax was applicable only for April to June 2017. iv) The entire demand confirmed by invoking extended period of limitation is not sustainable.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... h were entered into before 01.03.2015 were exempted from payment of service tax. 2.3. The appellant submits that in the impugned Order-in Appeal, the Learned Appellate Authority has simply held that since the Learned Adjudicating Authority had examined in detail the works orders, the observations made in the impugned adjudication order is legal and correct and needed no intervention. 2.4. The appellant submits that in the impugned adjudication order the Learned Adjudication Authority has confirmed the demand of Rs. 87,09,163/-, along with interest and penalty. From the impugned adjudication order it is evident that the demand has been raised only on the basis of the difference in values available as per 26AS and the declaration made by the appellant in the ST -3 returns filed by them. The appellant submits that the demand was raised assuming that such amounts received as per 26AS were the actual value of taxable supplies made by the Appellant during the periods in dispute. In this regard, the appellant referred the decision of this Tribunal in the case of M/s Tushar Transport vs. Commissioner of CGST & Central Excise, Bokaro - I bearing ST/75604 of 2022 wherein it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp;Provision of office accomodation and allied service for military station (service provided to GE, Birchurgunj) 8430/29/E8 30.09.2014 No payment certificate (copy of certificate annexed with submission) 3. Repair of wooden furniture 8668/11/E8 04.08.2016 Agreement falling within FY 2016-17 4. Special repairs of major accomodation building under GE 8790/14/E8 20.11.2017 Outside ST ambit yet ST demanded 5. Repair of wooden furniture 8754/05/E8 11.11.2017 Do 6. Addition/ Alteration to parade ground 8729/07/E8 01.04.2017 Do 7. Addition / Alteration to existing air crew operational readiness section and rest room 8710/30/E8 29.05.2017 Do 8. Maintenance work to accomodation of GE 8874/34/E8 10.09.2018 Do 9. Provision for area drainage 8920/42/E8 16.01.2019 Do 10. Maintenance work to accomodation of GE 8949/34/E8 10.05.2019 Do 11. Repairs to accomodation 8825/09/E8 07.02.2018 Do 12. _ _ _ 55657 No work order or payment certificate submitted therefore, ST demanded. 13. _ _ _ 3090000 No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial amount of time which ought to have been considered. Therefore, there cannot be any relation drawn from the payment received, which was after a huge span of time. Further, payment received during the period of GST is absolutely outside the scope of Service tax and therefore, there cannot be any demand made under service tax upon receipt of such payments. The payments received during the period from July, 2017, to March, 2018, were also construed to be taxable supplies during the said period. 2.11. The appellant submits 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 for the purpose of computing the service tax liability whereas, service tax was leviable only for the 1st quarter of the FY 2017-18 i.e. from April, 2017 to June 2017. Therefore, the computation of alleged taxable value is completely erroneous 2.12. The appellant further submits that the Ld Adjudicating Authority has charged service tax at the rate of 15% on the alleged taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has not allowed the exemption available to them and considered the entire amount as taxable value received during the period under dispute, which is legally not sustainable. 5.1. From the impugned adjudication order, we observe that the demand has been raised on the basis of the difference in values available as per 26AS and the declaration made by the appellant in the ST -3 returns filed by them. We find that the Ld. adjudicating authority has assumed that such amounts received as per 26AS are with respect to taxable services rendered during the periods in dispute and demanded service tax. In this regard, we observe that the demands cannot be confirmed merely on the basis of the data available in the Income Tax Returns/26AS Statements. It must be established that the amount shown in the 26AS statements are actually received in connection with taxable service rendered by the Appellant. We find that this view has been taken by this Tribunal in the case of M/s Tushar Transport vs. Commissioner of CGST & Central Excise, Bokaro - I bearing ST/75604 of 2022. The relevant portion of the said decision is reproduced below: 16. The Appellant relied on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Appeal No. 75856 of 2021, wherein it has been held as under: "In this case, the Appellant has contended that the demand has been raised on the basis of Form 26AS supplied by the Income Tax Department. Although summons was issued to the Appellant and the Appellant did not join the proceedings, therefore, the demand has been raised on the basis of Form 26AS. Admittedly, no investigation has been conducted in this case at the end of the Appellant by the Adjudicating Authority. Being the appellant a registered service provider and filing their service tax returns, in that circumstance, the demand cannot be raised on the basis of Form 26AS obtained from the Income Tax Department." 5.3. The appellant submitted that the benefit of exemption available to construction services rendered to Government under Entry 12 in terms of Notification No.25/2012-ST dated 20.06.2012 was disallowed due to non-submission of payment certificates and work orders. From the table extracted in para 2.7 supra, we observe that with respect to serial nos. 4 to 11 in the table, all the contracts have been entered in the FY 2017-18 and hence only GST could be charged upon such contracts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er we have elaborately heard the learned Counsels for the parties and carefully perused the materials placed on record, we have no hesitation to hold that the order passed by the Tribunal was just and proper and does not call for any interference. We support such conclusion with the following reasons. Firstly, to invoke the power under Section 11A that is to invoke the extended period of limitation there should be a clear finding of willful mis-statement or suppression on the part of the assessee with an intent to avoid payment of duty. On perusal of the show-cause notice we find there is absolutely no such allegation against the assessee and this aspect of the matter is not disputed by the revenue. The allegation against the assessee was that of not properly maintaining the register required to be maintained in terms of Rule 57F(2) of the Rules. If such is the allegation against the assessee, the adjudicating authority committed a serious error in invoking the power under Section 11A of the Act. A reading of the show-cause notice clearly shows that the information was gathered from the registers and challans maintained by the assessee and the show-cause notice is not on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed and illegal. For the disputed period from April 2011 to March 2013, there is no delay in issuance of show cause notice. The learned advocate appearing for the appellant on instructions submits that the appellant will pay the differential amount of service tax for the said period that is from April 2012 to June 2012,July 2012 to September 2022 and October 2012 to March 2013 at the appropriate rates. Since the service tax had been paid only at the rate of 2 %, the appellant agrees to pay interest thereon. The learned advocate submits that the court may consider the case and direct that the penalty should not be levied under Section 78 of the Act. We are not able to accede such a prayer as it is beyond the scope of the prayer sought for in the writ petition nor such contention appears to have been raised in the writ petition. However, we give liberty to the appellant to raise all contentions both on law and facts in the event there is proposal to levy penalty for the aforementioned period. 5.8. Thus, by relying on the decisions cited above, we hold that the demands confirmed in the impugned order by invoking the extended period of limitation is not sustainable. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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