Page 60 - GSTL_23rd April 2020_Vol 35_Part 4

386 GST LAW TIMES [ Vol. 35
period of 5 years. Said extended period of limitation can be invoked where any
service tax has not been levied or paid or has been short levied or short paid or
erroneously refunded in the contingencies prescribed in Clauses (a) to (e) to pro-
viso namely fraud or collusion or wilful misstatement or suppression of facts or
contravention of any of the provisions of the Act or of the rules made thereunder
with intent to evade payment of service tax.
10. It is in this background, tribunal has held where there can be two
views as to whether service provided by the respondent is ‘management’ or
‘business consultancy’ or not, cannot be a ground on which the department can
invoke extended period of limitation. Since ingredients indicated in the proviso
at Clauses (a) to (e) has neither been invoked against respondent while issuing
show cause notice nor the department having contended that non-payment of
service tax was by the reason of any clause mentioned in Clauses (a) to (e) to the
proviso of sub-section (1) of Section 73 of the Act is attracted, order of the tribu-
nal rejecting the prayer of revenue to invoke extended period of limitation can-
not be found fault with.
11. Tribunal, no doubt, has expressed its view that it would be inap-
propriate to invoke extended period by a short order. It has been observed that
respondent being a Government organization and when there could be two
views as to whether service provided by the respondent is management or busi-
ness consultancy or not, it would not be appropriate to invoke the extended peri-
od. The extended period of limitation can be invoked by the appellant as indicat-
ed under the proviso to sub-section (1) of Section 73 of the Act namely only un-
der the contingencies defined thereunder namely, when there is fraud or collu-
sion or wilful misstatement or suppression of facts or contravention of any of the
provision of said chapter or the rules made thereunder with intent to evade
payment of service tax. In order to ascertain as to whether the respondent would
fall under any of these category, we have perused the show cause notice issued
by appellant-revenue to respondent-assessee and find the only allegation which
revenue is attempting to rely upon to contend that extended period of limitation
would be applicable is on the basis of respondent-assessee was evading payment
of legitimate service tax due to Government. It is also not stated in the show
cause notice that there is mens rea on the part of the respondent. Until and unless
it is indicated or alleged in the show cause notice there was wilful misstatement
or suppression of fact on the part of respondent-assessee, non-payment of tax
would not fall within the definition of ‘wilful mis-statement’ or ‘suppression of
fact’, so as to attract the extended period of limitation as indicated in proviso to
sub-section (1) of section 73 of the Finance Act. In other words, intention on the
part of the assessee to evade payment of tax is to be gathered from the contents
of show cause notice or any other attendant circumstances. It all depends on facts
and circumstances of each case. There cannot be any straight jacket formula pre-
scribed in this regard. In fact, initial burden is on the revenue to establish or
prove that ingredients prescribed under proviso to sub-section (1) of Section 73
of the Act are present. In the absence of this fact, invoking of extended period of
limitation would be impermissible.
12. In the light of aforestated discussion, when facts on hand are exam-
ined, we find that show cause notice which came to be issued to respondent-
assessee was based on intelligence input gathered by the officers of the appel-
lant-revenue that there has been evasion of payment of service tax on the taxable
services rendered by respondent -assessee. It is not the case of the appellant that
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