Order Date: 24 February 2023

Parties: M/s. Jain Housing & Construction Limited vs. The Commissioner of Service Tax

Facts – 

• The appellant, M/s. Jain Housing & Construction Limited engaged in the development of residential projects received three SCNs proposing to levy Service Tax with respect to various projects executed by the appellant.
• In response to it, the appellant filed a detailed reply denying the tax liability as proposed in the SCN.
• The Commissioner, however, not satisfied with the reply, proceeded to confirm the demands, as proposed in the SCNs vide impugned common order, against which the present appeals have been filed before this forum.
• The other issue involved is the levy of Service Tax on the miscellaneous income which was treated as receipts towards construction services.

Issue – 

• Whether the demands confirmed in the impugned common order is correct?

Orders – 

• The Court observed that Revenue cannot simply rely on TDS/26AS Statement under the Income Tax Act, 1961 to fasten Service Tax liability. 
• The Court relied on the Ahmedabad Bench of the CESTAT in the case of M/s. Reynolds Petro Chem Ltd. v. Commissioner of C.Ex. & S.T. which stated that by relying upon the 26AS /TDS Statement under the Service Tax Act, a demand of service tax cannot be made.
• The Court stated that the value of taxable services cannot arrive on the basis of the TDS statements, Form 26AS cannot be considered as the value of taxable services for the purpose of demand of Service tax. Hence the appeal is allowed, the demand as well as the impugned order is set aside.