Custom, Excise & Service Tax Tribunal
Roop Singh Hukum Singh And Sons vs Cgst Kanpur on 6 May, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Service Tax Appeal No.70134 of 2026
(Arising out of Order-in-Appeal No.200/ST/APPL/ALLD/2025 dated
15/10/2025 passed by Commissioner (Appeals) Customs, Central Excise &
Service Tax, Allahabad)
M/s Roop Singh Hukum Singh and Sons, .....Appellant
(Awdh Nagar, Station Road Mainpuri-205001)
VERSUS
Commissioner of Central Excise &
CGST, Kanpur ....Respondent
(CGST Building, Farrukhabad)
APPEARANCE:
Shri Rajeev Kumar Kulshreshtha, Advocate for the Appellant
Smt Chitra Srivastava, Authorised Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO.70137/2026
DATE OF HEARING : 06 May, 2026
DATE OF DECISION : 06 May, 2026
SANJIV SRIVASTAVA:
This appeal is directed against Order in Appeal No.
200/ST/APPL/ALLD/2025 dated 15.10.2025 of Commissioner
(Appeals) Central Goods and Service Tax & Central Excise,
Allahabad. By the impugned order the Order-in-Original No.
23/AC/ADJ/ST/2024 dated 09.10.2024 of the Assistant
Commissioner CGST & CX Division Farrukhabad, holding as
follows has been upheld:
"ORDER
1. I confirm the short payment of S. Tax amounting to Rs.
5,16,142/-(Rupees Five Lakhs Sixteen Thousand One
Hundred and Fourty Two only) for the financial year 2015-
16 upon M/s. Roop Singh Hukum Singh & Sons, Awadh
Service Tax Appeal No.70134 of 2026
2
Nagar, Station Road, Mainpuri under Section 73(2) of
Finance Act, 1994 read with Section 174 of CGST Act,
2017 as discussed above to
2. I further order for recovery of interest at the appropriate
rate for the relevant period till the payment of said
confirmed amount of Service Tax from them under Section
75 of the Finance Act, 1994 read with Section 174 of CGST
Act, 2017 as discussed above
3. I further impose a penalty of Rs. 5,16,142/-(Rupees Five
Lakhs Sixteen Thousand One Hundred and Fourty Two
only) upon them under section 78 of the Finance Act, 1994
read with Section 174 of CGST Act, 2017, as discussed
above. Further I give an option to the party to pay 25%
penalty of amount of confirmed demand of service within a
period of 30 days of the date of receipt of this order.
Further, the benefit of reduced penalty shall be available
only if the amount of such reduced penalty is also paid
within 30 days
4. I impose a penalty of Rs.10,000/- (Ten thousand rupees
only) upon them under Section77(1)(c) of the Finance Act,
1994 read with Section 174 of CGST Act, 2017 as
discussed above.
5. I impose a penalty of Rs.10,000/- (Ten thousand rupees
only) upon them under Section 77(1)(d) of the Finance
Act, 1994 read with Section 174 of CGST Act, 2017 as
discussed above.
6. I impose a penalty of Rs. 10,000/- (Ten thousand rupees
only) upon them under Section 77(2) of the Finance Act,
1994 read with Section 174 of CGST Act, 2017 as
discussed above.
7. I impose late fee amounting to Rs. 500/- (Rupees Five
Hundred Only) for 5 days late filing of ST-3 return from
April 2015 to Sep. 2015 upon them under Section 70 of
the Finance Act, 1994 read with Rule 7(C) of Rules ibid
and read with Section 174 of CGST Act, 2017 as discussed
above."
Service Tax Appeal No.70134 of 2026
3
2.1 Appellant having Service Tax Registration
No.AAKFR0122LST001/SD002/SD03 are engaged in the activity
which are taxable under the definition of 'service' as being
defined under Section 6519(44) of the Finance Act, 1994 and
liable to pay Service Tax to the Central Government as per the
provisions of Section 66B of the Finance Act, 1994.
2.2 As per the third party information provided by CBDT,
during the period 2015-16 AAKFR0122LST001/002/003 had
received huge amount on account of providing services as per
ITR for the F.Y. 2015-16 but have not paid service tax due to the
Central Government.. As per TDS data the appellant had
received Rs. 11678350/-, however they have mentioned to have
received Rs. 11717805/- against sale of service. It was found
that the appellant were allegedly engaged in providing taxable
services which were neither covered under negative list nor
under Mega Exemption Notification. Since the taxable value was
more than the threshold limit of Rs. 1000000/- hence prima
facie they were liable to pay service tax on the consideration
received by them.
2.3 Thus enquiries were initiated and in order to ascertain and
quantify the exact amount of service tax dues, the appellant
were requested to provide certain specific documents viz details
of services provided, copy of Balance Sheet, ITR with
computation sheet, details of service tax deposited, copies of
bills / invoices and Form 26AS. However, the appellant did not
respond.
2.4 Thus it was concluded that the appellant had nothing to
add in their defence. The service tax due on the basis of
information provided by the Income Tax department was thus
computed as follows:
Total Receipts under Section Value as Value for Service Tax
per ITR determination
194 C 194 B 194 Total of Service Tax @ Payable
J payable %
9191967 2486384 0 11678350 11717805 11717805 14.5 1699082
Service Tax Appeal No.70134 of 2026
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2.5 A show-cause notice dated 02.11.2020 invoking the
provisions of proviso to section 73(1) of the Act was issued to
the appellant asking them to show cause as to why:-
(i) An amount of Rs.1,17,17,805/- (Rupees One Crore
Seventeen Lakhs Seventeen thousand Eight Hundred
and five only)should not be treated as the value of
taxable services provided by them during the Financial
Years 2015-16, and accordingly Service Tax amounting
to Rs. 16,99,082/- (Rupees Sixteen Lakh ninety nine
Thousand and eighty two Only)not paid /short paid
including Swachh Bharat Cess and Krishi Kalyan Cess
should not be demanded and recovered from them
under proviso to Section 73(1) of the Finance Act, 1994
as amended read with Section 174 of the CGST Act,
2017,
(ii) Interest at the appropriate rate should not be charged
and recovered from the Party in respect of amount of
service tax mentioned at S.N. (i) above under Section 75
of the Act' read with Section 174 of CGST Act, 2017;
(iii) Penalty should not be imposed upon them in respect of
amount of service tax mentioned at S.N. (i) above under
Section 78 of the 'Act' read with Section 174 CGST Act,
2017.
(iv) Penalty under Section 77(1)(c), 77(1)(d) and 77(2) of
Finance Act, 1994 read with Section 174 of CGST Act,
2017 should not be imposed upon them for their various
acts of omission and commission;
(v) Late fee/amount under Section 70 of Finance Act, 1994
read with Rule 7(C) ibid and read with Section 174 of
CGST Act, 2017 should not be imposed upon them for
their various acts of omission and commission;
2.6 The show cause notice was adjudicated as per the order in
original No 103/AC/ADJ/ST/2022 dated 11.05.2022 holding as
follows:
ORDER
Service Tax Appeal No.70134 of 2026 5
1. I confirm the amount of Rs.1,17,17,805/-(Rupees One Crore Seventeen Lakh Seventeen Thousand Eight Hundred Five Only) charged/received during the F.Y. 2015-16 by M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri as taxable value under Section 67 of Finance Act 1994 and accordingly I confirm the demand of Service Tax amounting to Rs. 16,99,082/- (Rupees Sixteen Lakh Ninety Nine Thousand Eighty Two Only) including Cesses under proviso to Section 73(1) ibid and order for recovery of the said amount from M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 73(2) of the Finance Act, 1994 readwith Section 174 of CGST Act 2017, as discussed above.
2. I further order for recovery of interest at the appropriate rate for the relevant period till the payment of said confirmed amount of Service Tax from M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 75 of the Finance Act, 1994 read with Section 174 of CGST Act, 2017 as discussed above.
3. I further impose a penalty of Rs. 16,99,082/- (Rupees Sixteen Lakh Ninety Thousand Eighty Two Only) upon M/s. Roop Singh Hukum Singh & Sons, Nagar, Station Road, Mainpuri under section 78 of the Finance Act, 1994 read with Section 174 of CGST Act, 2017, as discussed above. Further, I give an option to the party to pay 25% penalty of amount of confirmed demand of service tax as provided in the Section 78 of the Act, if Service Tax and Interest is paid within a period of 30 days of the date of receipt of this order. Further, the benefit of reduced penalty shall be available only if the amount of such reduced penalty is also paid within 30 days.
4. I impose a penalty of Rs. 10,000/- (Ten thousand rupees only) upon M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 77(1)(c) of Service Tax Appeal No.70134 of 2026 6 the Finance Act, 1994 read with Section 174 of CGST Act, 2017, as discussed above
5. I impose a penalty of Rs. 10,000/- (Ten thousand rupees only) upon M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 77(1)(d) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017, as discussed above.
6. I impose a penalty of Rs. 10,000/- (Ten thousand rupees only) upon M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 77(2) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017. as discussed above.
7. I impose a penalty of Rs.20,000/- (Twenty thousand rupees only) upon M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri under Section 70 of the Finance Act, 1994 read with Rule 7(C) of Service Tax Rules, 1994 and read with Section 174 of CGST Act, 2017, as discussed above.
2.7 Aggrieved appellant filed the appeal before the Commissioner (Appeal), who vide Order-in-Appeal No. 556/ST/ALLD/2022 dated 15.11.2022 allowed the appeal and remanded the matter back to original authority for de-novo consideration.
2.8 Adjudicating authority in the de-novo proceedings decided the matter as per order in original referred in para 1 above.
2.9 Aggrieved appellant filed the appeal before Commissioner (Appeal) which has been dismissed as per the impugned order.
2.10 Aggrieved appellant has filed this appeal.
3.1 I have heard Shri Rajeev Kumar Kulshrestha, Advocate for the Appellant and Ms Chitra Srivastava, Authorized Representative for the revenue.
3.2 Arguing for the appellant learned counsel submits that:
Appellant was regularly filing their service tax returns in the prescribed manner and by the due date, as appellant Service Tax Appeal No.70134 of 2026 7 have filed his returns regularly and made true and complete disclosure the demand made by invoking extended period of limitation is bad in law. The value declared by them in their ST-3 return is in respect of the taxable service not exempted from payment of services. They have paid the due service tax in respect of these services.
The difference in the figures of 26AS and ST-3 return is only on account amount received by them for local transportation of the goods from the rail head t the godown of the service recipient, which is less than Rs 1500/- per trip and is exempt from payment of service tax. It is settled principle in law that extended period of limitation cannot be invoked for making the demand by comparison of figures of ST-3 return and 26AS.
3.3 Authorized representative re-iterated the findings recorded in the impugned order.
4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments.
4.2 Impugned order records the findings as follows:
"5.2 I have carefully gone through the case records, and find that the appeal has been filed on 17.01.2025 against the impugned order dated 09.10.2024 which as per ST-4 is said to have been communicated to the appellant on 18.10.2024. Even going by the date of effective communication the appeal has been filed after a delay of one month. The appellant has citing medical reasons for the delay in their delay condonation application. They prayed to condone the delay and decide the case on merits. I find the delay is within condonable limit and hence exercising the powers conferred to me under the provisions of section 85(3A) of the Act, I condone the delay of one month and regularize the appeal to decide it on merit.
Service Tax Appeal No.70134 of 2026 8 5.3 After going carefully through the facts of the case on the basis of documents/records available on the case file, I find that the Adjudicating Authority has decided the case after taking into account all the documents submitted by the appellant. As per the impugned order the appellant has submitted the copy of challans, ST-3 Returns, Form 26AS etc. I note that the Adjudicating Authority has extended full benefit to the appellant on the taxable value reflected in their ST-3 Returns. However, I also note that besides above no other record has been submitted which could substantiate the differential taxable amount given in show cause notice vis-à-vis to impugned order 5.4 I note that it is undisputed that the appellant had provided taxable services for which they were liable to pay service tax on the taxable value. The appellant has sought relief by relying on the notification granting abatement, exemption or payment of service tax under reverse charge. However, I am of the view that no relief can be extended in the absence of documentary evidence. I find the case of U G Sugar & Industries Ltd. v/s CCE, Meerut [2011 (266) ELT 339 Tri Del] relatable to the current case where the Hon'ble CESTAT held that once the defence was raised by the appellants it was essential for the appellants to lead necessary evidence in that record. Mere raising of plea in answer to the show cause notice does not itself mean the proof of correctness of such plea. When the plea relates to certain factual aspect, it is absolutely necessary for the person raising such plea to make the same good by producing sufficient evidence in support of such plea. Undisputedly the appellants did not produce any such evidence in support of such plea.
5.5 Thus, I conclude that the service tax was quantified by the Adjudicating Authority as per records and evidences available in the case file. Since the exemptions from service tax (e.g., under notifications issued by the Central Government or specific provisions) are conditional and Service Tax Appeal No.70134 of 2026 9 require strict compliance with the stipulated conditions, the onus lies on the assessee to prove eligibility for the exemption through clear, cogent, and admissible documentary evidences. This is in line with general principles of taxation law, where exemptions are construed strictly, and the burden of proof lies with the claimant."
4.3 I find undisputedly appellant was filing the ST-3 returns at prescribed frequency during the period in dispute. Appellant has specifically in the appeal before Commissioner (Appeal) Challenged the demand on ground of limitation. Impugned order do not record any finding on the issue of limitation.
4.4 Show cause notice records as following for invocation of extended period of limitation "3. Whereas, from ACES/ online system of filing ST-3 returns, the respective data were not found retrieval due to some technical problem/ error as well as the Noticee have also not produced the hard copies of their ST-3 Returns as demanded by the department for the respective period. Therefore, it appears that the party have not filed their any ST-3 returns for the period i.e. 205-16 and concealed their receipts from the Department. Thus they have contravened the respective provisions of the Service Tax Rules, 1994 and Finance Act, 1994.
........
INVOCATION OF EXTENDED PERIOD DUE TO
SUPPRESSION OF FACTS-
12. From the above, it appears that M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri have suppressed the correct value of Taxable Services in respect of Services provided by them by way of not fling the due ST-3 returns/mis-declaring the taxable value in their ST-3 returns for the material period of Show Cause Notice. They suppressed this vital fact from the service had and not the tax to the department paid Service Tax Appeal No.70134 of 2026 10 department. The Noticee deliberately withholding of information or primary facts with the intent to evade the service tax from the department is a clear case of suppression of facts. The Noticee failed to disclose full and true information with the intent to evade the payment of service tax. It is responsibility of assessee to disclose all material facts truly and correct to the department. The facts of provision of the services and actual income/receipts from the service recipients were willfully suppressed from the knowledge of the department with intent toevade payment of service tax, even though they were in full knowledge of the facts.
In view of the facts stated above, it appears that by this action of M/s. Roop Singh Hukum Singh & Sons, Awadh Nagar, Station Road, Mainpuri of not disclosing properly the services provided by them, not showing taxable value in their returns [by way of not filing the due ST-3 return/ mis-declaring the taxable value in ST-3 returns] under Section 70 for the material period necessary for their assessment for the aforesaid periods, the value of taxable service had escaped assessment. They willfully and deliberately suppressed the gross value of taxable services rendered by them, with intent to evade payment of Service Tax. In the instant case, they failed to discharge theirduties and responsibilities as required by them under the provisions of Finance Act, 1994 and Service Tax Rules, 1994. Therefore, it appears that they had willfully not deposited the applicable service tax. It also appears that they did so with intent to evade payment of service tax. Since they have willfully suppressed the facts and contravened the various provisions of Finance Act, 1994 and the Service Tax Rules, 1994, as stated above with an intent to evade payment of service tax, hence, the provisions of proviso to Section 73 (1) of Finance Act 1994 for invoking extended period of limitation to demand Service Tax, is applicable against them."
Service Tax Appeal No.70134 of 2026 11 4.5 Order in original for invoking extended period of limitation records as follows:
"30. From the discussion made above, I find that by not providing documents, the party has confirmed that they suppressed all the relevant facts in respect of Services provided by them for the material period. They had failed to submit the required documents to the department so that the department couldn't work out the liability of service tax to be paid or short paid by them. The party could not establish through documentary evidence that the agreements made with service recipients for services and the taxable value of respective invoices/ amount were correctly accounted for in their statutory records. Moreover, the instant Show Cause Notice was issued for invoking the extended period of limitation on the ground that Noticee had willfully suppressed from the knowledge of the department with intent to evade the payment of service tax, the actual income/receipts from the service recipients even though they were in full knowledge of the facts. Moreover, they had not co-operated in the enquiry by way of not providing the documents sought from them.
31. Thus, I conclude that the party suppressed the value of Taxable Services in respect of services provided by them by way of not submitting the copies of registration and ST- 3 returns for the material period of Show Cause Notice. They suppressed this vital fact from the department and had short paid the service tax to the department. The party deliberately withholding of information or primary facts with the intent to evade the service tax from the department is clear case of suppression of facts. The party failed to disclose full and true information with the intent to evade the payment of service tax. It is responsibility of assessee to disclose all material facts truly and correct to the department. The facts of provision of the services and actual income/receipts from the service recipients were willfully suppressed from the knowledge of the department Service Tax Appeal No.70134 of 2026 12 with intent to evade payment of service tax, even though they were in full knowledge of the facts in the instant case, they failed to discharge their duties and responsibilities as required by them under the provisions of Finance Act, 1994 and Service Tax Rules, 1994. Therefore, it appears that they had willfully not deposited short payment of service tax. It also appears that they did so with intent to evade payment of service tax. Since, they have willfully suppressed the facts and contravened the various provisions of Finance Act, 1994 and the Service Tax Rules, 1994, as stated above with an intent to evade payment of Service Tax hence, the provisions of proviso to Section 73(1) of Finance Act, 1994 for invoking the extended period to demand Service Tax, is applicable against them."
4.6 Undisputedly appellant was registered with the department and also was filing their ST-3 return on the ACES Portal in the manner as prescribed. They were paying the service tax due in respect of the taxable services which were not exempted provided by them. From perusal of the agreement/ contract with Tata Chemicals and 26AS of the Appellant it is quite evident that appellant was providing services only to Tata Chemicals and all the ingredients/components of the service provided were along with the value/ consideration against each component was part of single agreement titled "Buffer Handling Agreement". Appellant had declared gross consideration received by them for provision of the taxable services provided by them and paid the service tax accordingly. The fact that appellant was filing the ST- 3 return is admitted by both original authority and the First Appellate authority. The benefit of the consideration declared and tax paid has been allowed by both the authorities. However even after having concluded so original authority contradicts himself by giving a contrary finding for invoking the extended period of limitation, might be for the reason that this part was copy pasted from the earlier order in original dated 11.05.2022 with minor cosmetic changes. How can department accuse appellant of suppressing the information when they are not in Service Tax Appeal No.70134 of 2026 13 position to retrieve the ST-3 from their own portal (ACES). The entire demand as per the show cause notice has been made only on the basis of information provided by the Income Tax authorities without any further enquiry or investigation.
4.7 In case of SRK Innovatives School of Information Pvt Ltd. [Final Order No A/30156/2023 dated 02.05.2025 in Service Tax Appeal No 30386/2023] Hyderabad Bench has held as follows:
9. The appellant is mainly relying on the fact that since the entire demand is based on the difference noticed by Department in terms of the amount reflected in ST-3 and Form - 26 AS filed under Income Tax and there is no independent investigation or corroboration to support the allegation that they had provided taxable service, demand cannot sustain. Further, it was only in the course of adjudication, as a part of their defence, they claimed exemption under Notification No. 25/2012-ST. Therefore, when the charge itself was based solely on the difference between ST-3 and Form - 26 AS, without ascertaining the nature of activities and whether it would amount to service in terms of Section 66B, further proceedings in terms of adjudicating etc., would not sustain and demand has to be dropped on that count itself. He has further submitted that the taxable value has to be determined as per provision of Section 67 of the Finance Act, 1994 read with rules made under Service Tax (Determination of Value) Rules, 2006 and not merely on the basis of figures available in the ITR.
Therefore, when neither the activity being chargeable to service tax has been established before the issue of the show cause notice nor it's value has been determined in accordance with the statutory provisions, a demand merely based on the difference between ST-3 and Form - 26 AS is not tenable.
10. We find there is considerable force in the submission of the appellant that since the demand itself has been made solely on the basis of difference between the Income Tax Service Tax Appeal No.70134 of 2026 14 Return/Form - 26 AS and Service Tax Return, it cannot sustain, as held by Co-ordinate Benches in catena of judgments in this regard. It is an admitted fact that the show cause notice proposing the demand was based on only difference noticed between sale of services shown in ITR/Form - 26 AS for the year 2015-16 and gross consideration declared in the ST-3 return. The Department has not carried out any independent investigation to establish that they were engaged in providing taxable service. Moreover, the quantum of taxable service was not worked out in accordance with the valuation rules. Though, admittedly, the appellants have claimed certain exemption notification in the course of adjudication, it does not take away the fact that the show cause notice itself was purely based on the difference between these two documents referred supra. Merely, because the Department has sought certain information from the appellant which was not provided by the appellant, it cannot be presumed by the Department that they were engaged in providing taxable service and to the extent demand being made in the show cause notice would tantamount to making a bald allegation without any substantive grounds and evidence and asking the appellant to defend the same in the course of adjudication. When the show cause notice itself suffers from infirmity, any further proceeding would automatically not be sustained based on said non-tenable show cause notice. Therefore, on this ground itself, the impugned order is not sustainable.
4.8 Similar view has been expressed by tribunal in series of decisions. Few of them being cited below:
A. Piyush Sharma [Kolkata Bench Final Order No. 77332/2023 dated 17.10.2023] "10. 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 Service Tax Appeal No.70134 of 2026 15 summons were 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 circumstances, the demand cannot be raised on the basis of Form-26AS obtained from the Income Tax Department. Further, the adjudication order has been passed ex parte."
B. Gopi Chenna [Hyderabad Bench Final Order No. A/30078-30079/2024 dated 26.02.2024]
8. On going through the records of the case, it is clear that the cases are made on the basis of third party data i.e., amounts reflected in Income Tax Returns and in Form 26AS. Revenue takes the stand that in the Negative List regime, Department is not obliged to prove the provision of a particular service to demand service tax and further, the Appellants could not explain that the difference satisfactorily. I find that this is not the correct approach; exigibility to service tax depends on the service provider, service rendered, service recipient and the consideration thereof. Unless these four elements have been connected logically, demand of service tax cannot be confirmed merely on the basis of figures reflected in other statutory records. Be it pre or post-Negative List regime, the Department is under obligation to prove that the Appellants have rendered such and such service and to such and such persons and that the consideration was received towards the rendering of such service. Without doing the same, demand merely on the basis of figures does not survive.
8.1 I find that Tribunal has been continuously holding that such demands are not sustainable. I find that Chandigarh Bench of this Tribunal in the case of Indian Machine Tools Service Tax Appeal No.70134 of 2026 16 Manufacturers Association Vs. CCE, Panchkula (supra) held as follows:
"11. Coming to third and final issue as to whether any demand can be sustained on the basis of difference between the figures of ST-3 Returns and the balance sheets, we find that it is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed. For this reason, we are of the considered opinion that it is not open for the Department to raise demands on the basis of other statutory returns like Income Tax Returns or balance sheets without proving that such service has been rendered by the assessee and consideration thereof has been received. Similarly, no service tax demand can be raised and confirmed on the basis of notional income. We find that Tribunal in the case of Synergy Audio Visual Workshop (P) Ltd. - 2008 (10) STR 578 (Tri-Bang.) held that:
5.1 The other ground for confirming demands is that the appellants had shown certain amounts due from the parties in their Income-tax returns and Revenue has proceeded to demand service tax on this amount shown in the Balance Sheet. The appellants have relied on large number of judgments which has settled the issue that amounts shown in the Incometax returns or Balance Sheet are not liable for service tax. In view of these judgments, the appellant succeeds on this ground also. The impugned order is set aside and the appeal is allowed."
8.1 Also the Tribunal in the case of M/s Raj Mohan Vs. Commissioner of CGST, Panchkula (supra), held as follows:
Service Tax Appeal No.70134 of 2026 17 "3. I have heard learned Counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the written submissions and case laws filed by the respective sides. Learned Counsel for the appellant submits that on merits as well as on limitation no Service Tax can be demanded from the appellant.
Per Contra, learned Authorised Representative re- iterated the submissions recorder in the impugned order and prays for dismissal of appeal filed by the appellant. So far as the issue about differences in the figures reflected in ST-3 Returns and in form 26AS is concerned it has been settled by way of various decisions of the Tribunal that the Revenue cannot raise the demand on the basis of merely differences without establishing that the entire amount received by the appellant as reflected in form 26AS is consideration for services provided because it is also not proper to presume that the entire differential amount was on account of consideration for providing services without verifying it. It is the specific case of the appellant that the amount shown in Form 26AS by the service recipient have not been received by the appellant. I also agree with the submission of learned Counsel that the burden to prove the allegations is upon the department that the appellants have received the extra payment on which the TDS of Rs.3,74,121/-(since form 26AS reflects TDS) has been deducted by the service recipient. My aforesaid view is also supported by the decision of the Tribunal in the matter of Qwest Engineering Consultant Pvt. Ltd. v/s Commissioner CGST, Central Ex. Allahabad; 2022 (58) GSTL-345 (Tri-All.)in which the co-ordinate Bench of the Tribunal has held that form 26AS is not a statutory document for determining the taxable turnover Service Tax Appeal No.70134 of 2026 18 under the Service Tax as form 26AS is maintained on cash/receipt basis by the Income Tax department for the purpose of TDS etc. whereas the Service Tax is chargeable on mercantile basis (approval basis) on the services provided. Similarly, in the matter of Kush Construction v/s CGST Nachin, ZTI, Kanpur;2019 (24) GSTL-606 (Tri-All.) also it has been held that differences in figures reflected in ST-3 Returns and form 26AS cannot be basis for raising Service Tax demand without examining the reasons for such differences and without examining whether the amount as reflected in the said Income Tax Return was the consideration for providing any taxable services or the difference was due to any exemption or any abatement. Even otherwise in various decisions of the Tribunal it has been held that the figures in form 26AS are already included in Income Tax Returns in the Profit & Loss account and balance sheet which is a public document and the ST-3 Returns were also filed by the appellants regularly therefore, no suppression can be alleged and no evidence has been adduced by the Revenue to establish malafide intention for evasion of Service Tax and therefore extended period cannot be invoked. The recent decision of the Tribunal on this issue of extended period in such type of cases is by the Kolkata Bench of the Tribunal vide order dated 23/02/2022 in the matter of Service Tax Appeal No. 75792 of 2021 titled as M/s. Luit Developers Pvt. Ltd. v/s. Commissioner CGST & Central Excise, Dibrugarh. So far as the demand of Rs. 38,357/- based on four invoices is concerned, I am unable to find any document in the case records in support of appellant. The appellant has failed to adduce any evidence/document in support of their claim that the said amount has not been received by them or that Service Tax Appeal No.70134 of 2026 19 the invoices/bills were cancelled. Rather it has been submitted by the learned Counsel that the appellant has made a submission before the lower authorities that they were ready to pay the service tax amount involved on the said invoices in order to avoid the interest liability and in the written submission herein it has been mentioned by the appellant that the service tax has been deposited by them. Therefore accordingly this issue is decided against the appellant."
9. In view of the above, I find that the Impugned Orders cannot be legally sustained; Accordingly, I set aside the Impugned Orders and allow the Appeals, with consequential relief, if any, as per law.
C. Shri Vikas Singh [New Delhi Bench Final Order No. 55776/2024 dated 17.05.2024] "13. The difference in figures reflected in ST-3 returns and Form 26AS filed under Income Tax Act can also not be the basis for raising service tax demand without examining the reasons for such difference and without examining as to whether the amount which is reflected in income tax return was the consideration for providing any taxable services or the difference was due to any exemption or abatement. The demand cannot be confirmed. I draw my support from the decision of this Tribunal in the case of Kush Constructions versus CGST Nacin, ZTI, Kanpur reported as 2019 (24) G.S.T.L. 606 (Tri. - All.). The appellant has also shown his eligibility to avail the SSI exemption. In the light of Notification No. 33/2012-ST dated 20 June 2012, I find no reason to deny the the said contention.
14. Finally it is observed that the original adjudicating authority has acknowledged receiving ST-3 returns filed by the appellant and the deposit of service tax as was self- assessed by the appellant, the same is sufficient to falsify the alleged suppression, on the part of the appellant. I draw my support from the decision of Hon‟ble apex Court Service Tax Appeal No.70134 of 2026 20 in the case of Anand Nishikawa Co. Ltd. versus CCE, Meerut reported as 2005 (188) E.L.T. 149 (S.C.) where it has been held and is followed till date that :
"Suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both parties, the omission by one to do what he might have done not that he must have done would not render it suppression".
It has been clarified by Hon'ble Supreme court that there must be some positive act from the side of assessee brought on record by department to find willful suppress. In the present case, appellant was regularly filing returns and there is no evidence of any such positive act of appellant as may reveal the malafide intention of appellant to evade tax.
The extended period is, therefore, held to have been wrongly invoked. Decision in M/s Kalya Constructions Pvt. Ltd. is held to cover the impugned issue."
4.9 I find that the demand made against the appellant by invoking extended period of limitation is bad in law and cannot be sustained and needs to be set aside on this ground itself. As the demand of service is being set aside the demand of interest and penalties imposed under various provisions of the Finance Act, 1994 and Rules made thereunder are also set aside.
4.10 Thus I do not find any merits in the impugned order.
5.1 Appeal is allowed.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp