Case Law Details
Luit Developers Private Limited Vs Commissioner of CGST & Central Excise
it is trite law that figures of Form 26AS are not to be used for determining Service Tax liability unless there is proof to show that it was on account of any taxable service and relies on the order of the Tribunal in Kush Constructions vs CGST NACIN 2019 (34) GSTL 606 for the same. He also argues that figures submitted to the Income Tax authorities cannot be used for determining Service Tax without evidence of taxable service.
I find force in the contention of the Ld Counsel of the appellant that CA Certified Reconciliation of ST-3 Returns and Form 26AS clearly shows that inflated figure in Form 26AS is because some Service Recipients deducted TDS not only on the rent/commission but also on the Service Tax component. The Service Recipients also confirmed the same. I also find force in the contention of the appellant that part of the service tax being demanded by the Department on RCM basis cannot be sustained since Service tax was already collected by Service Providers as seen from invoices and Reconciliation Certificate. Moreover, some service providers for which the Department is demanding Service Tax on RCM basis are Limited companies or Pvt Ltd Companies like Blue Star Ltd, Kone Elevator India Pvt Ltd and Tractors India Pvt Ltd and therefore tax is not on Reverse Charge, but on forward charge basis as per Point I(A)(v) of Notification No 30/2012-Service Tax [Reverse Charge Notification] dated 20.06.2012.
11. I also find force in the submission of the Ld Counsel for the appellant that figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is any evidence shown that it was due to a taxable service as held in Kush Constructions vs CGST NACIN 2019 (34) GSTL 606. Also, figures shown to Income Tax authorities cannot be used to determine Service Tax as held in Synergy Audio Visual Workshop Pvt Ltd versus Commissioner of Service Tax Bangalore 2008 (10) STR 578 and CCE Ludhiana vs Deluxe Enterprises 2011 (22) STR 203.
FULL TEXT OF THE CESTAT KOLKATA ORDER
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