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TMI Blog2025 (4) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... x, that some bills/ amounts were wrongly shown credited in their account which did not pertain to them. But the appellant failed to produce evidence in support of their contention in the form of certificate issued by Chartered Accountant and duly acknowledged copy of revised TDS return. Even after taking into consideration amount of Service Tax said to have been included in the amount shown credited in 26AS statement, the amount excluding the Service Tax was still more than what was shown in their Sales Ledger in the case of some clients. Since, the appellant had shown less value of taxable service in their Sales register, they were liable to pay Service Tax on the said differential taxable value. The appellant had shown total taxable value Rs. 16,99,58,076/- in their Sales Ledger for the financial year 2012-2013 as against the total taxable value of Rs. 18,31,63,280/- (i.e. exclusive of Service Tax) shown in 26AS statement in respect of certain clients. Thus, they had shown less value of taxable service to the tune of Rs. 1,32,05,204/- and thereby they had short paid the Service Tax amounting to Rs. 16,32,163/-. Mentioning these facts and legal provisions applicable in the case an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) ought to have considered and appreciated that Form 26AS is a report generated as per the provisions of the Income Tax Act, 1961 and thus can only be used as corroborative evidence in adjudication proceedings under the Finance Act, 1994. There is no negative discrepancy between the value of taxable services provided as disclosed in the Service Tax returns and the audited accounts / statutory Audit Report. 1.5. The total value of taxable services rendered by the appellant as per the ST-3 returns is Rs. 39,97,63,601/-. The genuineness and veracity of the said value of taxable services rendered as disclosed in the ST-3 returns gets established and vouched on it's comparison with the Statutory Audit Report "Note 22 : revenue from operations". This note, which forms a part of the audited financial statements, shows the value of taxable services rendered by the appellant as Rs. 39,97,24,257/-. This value is in agreement with the total value of taxable services rendered as disclosed in the ST-3 returns but for a minute difference of Rs. 39,344/- attributable to discounts and rate difference and therefore, there is no under-reporting or non-accounting of value of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Order- In-Appeal dated 15.05.2017 passed by the learned Commissioner be quashed and set aside and the appeal be allowed. 3. On the other hand the learned AR has argued that in this case there is difference between taxable value shown in the Sales register, ST-3 returns and other records of the appellant and that shown in the 26AS statements of some of their clients. The appellant had on one hand credited the TDS deducted by their clients in their records like balance sheet and ST-3 returns as part of taxable value but contended on the other hand that it was default of their clients that they had shown/ adjusted the amounts in their account for the sake of year-end provisions. The appellant themselves should have taken steps to rectify the accounts, if there was any mismatch in their accounting. The appellant had not provided the details client wise, bill wise, payment wise, reconciliation statement wise, etc., when the Department is relying on the evidence like 26AS statement of their client. The sole reason for difference in taxable value given by the appellant is that the clients unilaterally created year-end provision for ongoing capital work in progress and deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be taken as evidence in service tax law in his favour. The learned counsel for the appellant cited Shri Kankeshwari Enterprice Vs. Commissioner of Central Excise and Service Tax, Bhavnagar - (2023) 9 Centax 77 (Tri.- Ahmd) in which division bench of this Tribunal held that it is settled by now that without conducting any independent inquiry or investigation, the demand of service tax cannot be sustained only on the basis of 26-AS data provided by the income tax authorities to the Central Excise officers at Bhavnagar. Service tax demand cannot be raised on the basis of assessment by the income tax authorities. There is no dispute on the fact that the show cause notice for demand of the service tax is solely on data / TDS / 26AS of the appellant in income tax returns for the financial year 2015-16 to 2016- 17, which are shared by income tax authorities. Declarations under Income Tax Act are Annual Consolidated Tax Statements. Income tax and service tax are two different and separate and independent special Central Acts and their provisions are operating in two different and independent fields. By relying only on "26AS data" of Income Tax, demand of Service Tax cannot be made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for the department to solely rely upon the 26AS statement of some of the clients of the appellant and raise demand of service tax solely on its basis. The department should have collected independent evidence and material to clearly show that the appellant failed to pay proper service tax but the department failed to collect independent evidence and reliable material for raising the demand of service tax on differential basis. 4.7 Further, it is pertinent to note here that the lower appellate authority Commissioner (Appeals) has mentioned on Para 7 of the order as follows:- "From the documents / evidences submitted in the present appeal, it is not ascertainable as to whether the appellant had discharged their service tax liability on the basis of bills issued in the particular financial year or on the basis of receipt of payment basis. It seems from their contention that they pay the service tax on receipt of payment basis which is not correct. Once the bills were issued during the particular financial year, the service tax liability of the appellant was on the total value / amount of bills issued irrespective of whether the client books the amounts in their account or not. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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