P.K. Choudhary DECISION
P.K. Choudhary, Member (J)
1. The present appeal has been filed by the Appellant assailing the Order-In-Appeal No. 1064/ST/ALLD/2023 dated 21.06.2023, passed by the learned Commissioner (Appeals), Customs, Central Excise & CGST, Allahabad by which the appeal filed by the Appellant before him have been dismissed upholding the Order-in-Original.
2. Facts of the case in brief are that the demand was raised on the basis of third party information i.e. data revealed from ITR/Form 26-AS from Income Tax Department. On this basis Show Cause Notice1 dated 19-10-2021 was issued alleging that in the F.Y.-2016-17, the Appellant had shown Income of Rs. 42,29,837/- in his ITR but has not paid Service Tax on that amount.
3. The SCN was adjudicated vide Order-in-Original No. 87/ST/Asstt. Commr/JNP/2022-23 dated: 31.12.2022, by which the demand of Rs. 6,34,476/- was confirmed and penalties were imposed under Sections 78, 77(1)(a), 77(2), 77(1)(c) & 70 of the Finance Act,1994. Hence, the present appeal before this Tribunal.
4. Sri Kartikeya Narain, ld. Counsel for the Appellant has submitted that the Appellant was providing Works Contract Services worth Rs. 37,79,837/- and supply of material worth Rs. 4,50,000/- to Purvanchal Vidyut Vitran Nigam Ltd2., Jaunpur. The Service receiver PVVNL has paid all the taxes on Works Contract Services without taking the benefit of abatement as per Rule 2A of the Service (Determination of Value) Rules, 2006. The Ld.Counsel also submits that the "Tax Payment Certificate" and "Supply of Material Certificate" has been issued by PVVNL. Further, reliance has been made on the final order of this Tribunal in the case of M/s. Navyug Alloys Pvt. Ltd. v. Commissioner of Central Excise & Customs, Vadodara-II reported as MANU/CS/0428/2008 : 2009 (13) S.T.R. 421 (Tri.-Ahmd.) and further submits that the whole demand is barred by limitation.
5. The learned Authorized Representative appearing for the Revenue reiterated the findings given by the learned Commissioner (Appeals) and submitted that service tax was legally liable to be paid by the Appellant under reverse charge and they cannot claim any relaxation in this regard. He prayed that the appeal be dismissed.
6. Heard both sides and perused the appeal records.
7. I find from the records that the service receiver PVVNL deposited the entire service tax amount on the works contract services provided by the Appellant. I note that this Tribunal in the case of M/s. Navyug Alloys Pvt. Ltd.(Supra) has held that once tax is already paid on the services, it was not open to the Department to confirm the same against the Appellant in respect of the same services, since after accepting the said tax from service recipient, Revenue did not refund the same. The Appellant has submitted that the service tax liability on works contract services provided by him to PVVNL was discharged by the service recipient under reverse charge mechanism. I, therefore, find that if the same service tax is once again confirmed then it will amount to double taxation.
8. Apart from the merits of the case, I also find that the demand is barred by limitation having been raised by invoking the longer period. The Revenue picked up the figures from the Income Tax Return maintained by the Assessee. The Income Tax Return has been held to be public documents by various decisions and it stands concluded that when the income arising from various activities stand reflected in the said public documents, it cannot be said that there was any suppression or misstatement on the part of the Assessee so as to invoke the longer period of limitation. Reference can be made to Tribunal's decision in the case of C.S.T., New Delhi v. Kamal Lalwani [MANU/CE/0644/2016 : 2017 (49) S.T.R. 552 (Tri. - Del.)], laying down that extended period is not invocable if services rendered are reflected in Balance Sheet and Income Tax returns and no evidence stands produced that non-payment of duty was due to any mala fide intention. Reference can also be made to Hon'ble Allahabad High Court's decision in the case of Commissioner of Central Tax v. Zee Media Corporation Ltd. [MANU/UP/4622/2018 : 2018 (18) G.S.T.L. 32 (All.)]. The Hon'ble High Court observed that the SCN itself shows that every detail was maintained by the assessee in usual course of business, the ingredients of proviso to Section 73(1) of the Finance Act, 1994, establishing any suppression of facts to evade payment of tax cannot be held to be present and invocation of extended period of limitation was not correct on the part of the Revenue.
9. In view of the above discussions, the impugned order is set aside and the appeal filed by the Appellant is allowed with consequential relief, as per law.
(Order pronounced in open court on - 24th April, 2024)
1SCN
2PVVNL
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