Swatantra Jain Vs Commissioner (CESTAT Delhi)
Service tax demand based on Form 26AS justified as returns not filed and service tax registration not taken
CESTAT Delhi held that service tax correctly demanded on the basis of Form 26AS since the appellant has not filed any returns and is also not registered with service tax department. Accordingly, appeal of assessee dismissed.
Facts- The appellant worked as a commission agent and received commission to sell plots of M/s DHL Infra Bulls International Pvt. Ltd. As per section 65B (44) of the Finance Act, 1994 this activity of providing services of real estate agent falls under the definition of “service”. It was not listed in the negative list of services.
Accordingly, a show cause notice dated 01.10.2015 was issued to the appellant covering the period 2010-2011 to 2014-2015. The proposal in the show cause notice was confirmed by the Assistant Commissioner in order-in-original dated 30.11.2016, which was upheld by the Commissioner (Appeals) through the impugned order.
Conclusion- Held that it is true that service tax cannot be demanded solely on the ground that an amount is mentioned as having been paid to the appellant in Form 26AS. However, if the appellant had not filed any returns and was also not registered with the service tax department, Form 26AS does provide an important source of information on the amounts paid to the appellant. If the amounts paid to the appellant as reflected in Form 26AS were for any other purpose, other than rendering a taxable service, such amounts cannot be included to demand service tax. In this case, the undisputed fact is that all the amounts paid by M/s DHL to the appellant as reflected in Form 26AS were towards rendering its services as the commission agent only. Therefore, service tax was correctly demanded on the amounts so received.
