Commissioner CGST & C.E. – Ahmedabad North VERSUS  Jasvant B Shah 

Customs, Excise & Service Tax 

Appellate Tribunal West Zonal

Bench At Ahmedabad

 

REGIONAL BENCH-COURT NO. 3

Service Tax Appeal No. 381 of 2011 – DB

Service Tax Misc. Application(ORS) No. 10086 of 2022

(Arising out of OIO-STC/07/COMMR/AHD/2011 dated 15/03/2011 passed by Commissioner of Service Tax-SERVICE TAX – AHMEDABAD)

Commissioner CGST & C.E.– Ahmedabad North

VERSUS 

Jasvant B Shah 

WITH

 

Service Tax Appeal No. 392 of 2011 – DB

(Arising out of OIO-STC/7/COMMR/AHD/2011 dated 15/03/2011 passed Commissioner of Service Tax-SERVICE TAX – AHMEDABAD)

 

Jasvant B Shah

VERSUS 

Commissioner CGST & C.E.– Ahmedabad North

APPEARANCE:

Shri Nilesh V Suchak, Chartered Accountant for the Appellant – Assessee Shri Ajay Kumar Samota, Superintended (AR) for the Respondent-Revenue

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON’BLE MEMBER (TECHNICAL), MR. C L MAHAR

Final Order No 11696-11697/2023

 

 

 

 

 

RAMESH NAIR

DATE OF HEARING: 29.05.2023 DATE OF DECISION: 17.08.2023

 

 

There are cross appeals each by the Revenue and the assessee, arising from the common Order-in-Original No. STC/7/COMMR/AHD/2011 dated

 

15.03.2011 passed by the Commissioner of Service Tax, Ahmedabad dropping the Service tax demand of Rs. 1,08,81,883/- and confirming the Service tax demand of Rs. 52,02,797/- and disallowing Cenvat Credit of Rs. 4,09,526/- with interest and penalties against the assessee. As such both the appeals are taken up together for consideration and disposal.

 

1.2 The brief facts of the case are that assessee M/s J.B. Shah are engaged in providing services of “Customs House Agents‟ (CHA) Services. During the course of search and scrutiny of records of assessee it was revealed that assessee were raising two sets of invoices, one towards service agency charges which was considered for payment of Service tax and other set for reimbursing various expenses incurred on behalf of their client on which service tax was not discharged. It was alleged that this pattern of invoicing was adopted to suppress the actual service charges collected and to pay less service tax. Assessee were taking advantage of the Circular F. No. B43/1/97-TRU dated 06.06.1997 which envisaged „payment made by CHA on behalf of the client, such as reimbursement expenses incurred are not to be included for computing the Service tax. It was also observed by the investigating officers that assessee had wrongly availed Cenvat Credit on input services such as transportation service and photography service. Accordingly, a detail show cause notice dated 30-03-2009 was issued to the assessee proposing service tax demand of Rs. 1,60,84,680/- for the period from 01.10.2003 to 31.03.2008 leviable on the reimbursement charges and for disallowance of Cenvat Credit of Rs. 4,09,526/-.The adjudicating authority in his impugned Order-in-Original dropped the demand of service tax of Rs. 1,08,81,883/-, however, confirmed the service tax demand of Rs. 52,07,797/- ; confirmed the Cenvat credit demand of Rs. 4,09,526/-. Hence, both the Revenue and the assessee are in appeal.

 

2. Learned Chartered Accountant, Shri Nilesh Suchak for the appellant M/s Jasvant B Shah submits that impugned order has confirmed the demand of service tax for the period 01.10.2003 to 17.04.2006 under category of CHA service of Rs. 25,57,859/- in respect of the reimbursements ofexpenses by treating them as directly related to CHA services and of Rs. 4,37,918/- in respect of difference between income and expenses for which reimbursements of expenses are claimed by the appellant. Further, impugned order has also confirmed the demand of Service tax under the category of CHA services for the period 19.04.2006 to 31.03.2008 of Rs. 97,144/- in respect of reimbursements of expenses by treating them as directly related to CHA services and Rs. 18,60,231/- in respect of reimbursement of local cartage; and Rs. 2,49,645/- in respect of other reimbursements of expenses. The demand of service tax confirmed under CHA service on reimbursable expenses recovered by the appellant is not legal as these charges are not for any service provided by the Appellant.

 

• He also submits that appellant is a licensed Customs House Agent (CHA)for Ahmedabad and has paid due service tax on agency charges and it did not charge, collect or pay service tax on certain reimbursable expenses incurred on behalf of the clients under a bonafide belief based on CBIC clarification and practice followed by other CHAs.

 

• He further submits that the impugned order held that in addition to payment of service tax on agency charges appellant was also required topay service tax on amount received from the clients as reimbursable expenses. This stand of the adjudicating authority in confirming demand of service tax on reimbursable expenses is contrary to the clarification issued by the CBEC under its Letter F. No. B.43/1/97-TRU dated 06.061997. It is settled law that circular/ instructions of CBEC are binding on revenue authorities. He placed reliance on Supreme Court decision is case of Ranadey Micro Nutrients Vs. Commissioner of Central Excise- 1996 (87) ELT 19(SC).

 

• He also submits that all the reimbursable expenses on which demand of Service tax is confirmed by the Learned Commissioner are for activities which can be carried out by others who do not require any CHA license. Thus, the activities which are outsourced and are not carried out byappellant but by others who are not CHAs, such activities are outside the scope of definition of taxable service of CHA service as given in Section 65(105)(h) of the Finance Act, 1994 and they cannot be taxed under the category of CHA service.

 

• He also argued that for the period after 19.04.2006 when Service tax (Determination of Value) Rules, 2006 introduced rule 5(2) related to pure agent, appellant has excluded amounts recovered as pure agent only in those cases where all condition of Rule 5 (2) are satisfied and has paid due service tax even on reimbursements when any of the said conditions are not satisfied.Appellant also submitted the sample documents to the adjudicating authority to show that appellant recovered actual expenses incurred. The Learned Commissioner has, sheer disregard of sample documents, tired to compare income and expenses head wise and confirmed certain demands even though it was explained. It is settled law that all other amounts which are separately billed by CHA or shown towards expenses for obtaining various services or discharging fee/duty in relation to the export/import of goods are not to be included in the taxable value. He placed reliance on decisions in case of UOI Vs. International Consultants and Technocrats Pvt. Ltd. -2018(10)GSTL 401 (SC).

 

• He also submits that impugned order confirmed the demand of service tax of Rs. 4,37,918/- on difference between the amount received from the client as reimbursable expenses and the amount spent/ incurred and has thus travelled beyond the scope of SCN as there was no proposal in the SCN to demand service tax on such differential amount. However, appellant have not recovered any excess amount than their respective expenses and the difference could be only due to booking the expenses on dates of incurring expenses and date of billing to the clients. Further, on cartage charges, the recipientof service tax is liable to pay service tax under RCM and appellant‟s clients are to pay such service tax on transportation service. Under such cases, confirming demand of service tax on such cartage charges under the category of CHA service is not legal and proper. For other reimbursable expenses also, since these services are provided by others, the same cannot be taxed under CHA service by any stretch of imagination. He placed reliance on the following decisions:
  • Sehar Vs. CST, Delhi Appeal No. ST/52708/2016 decided on 06.2022.
  • BaxGlobal India  Vs. CST, Bangalore – 2008(9)STR 412 (Tri.

Bang.)

 

• Lee& Muir Head  Ltd. Vs CST – 2009 (14)STR 348 (Tri. –Bang.)
• S& K Enterprises  Commissioner – 2008(10)STR 171 (Tri.

Bang.)

 

• KinShip Services (India)  Vs. CCE – 2008(10)STR 331(Tri.

Bang.)

 

• CargoLinks  CCE – 2010(19)STR 548 (Tri. Bang.)
• SriGanesh Shipping Agency  CCE & ST – 2018 (9) GSTL 293 (Tri. Bang.)
• AdityaCollege of Competitive Exam  CCE, Visakhapatnam – 2009(16) STR 154 (Tri.- Bang).

 

 

• As regard the Cenvat credit demand he submits that credits availed by the appellant are used for providing output services of CHA and hence the same is clearly admissible in terms of provisions of Rule 2 (l) of the Cenvat Credit Rules, 2004.

 

• He also submits that demands confirmed by Learned Commissionerare barred by limitation. Assessee have filed ST-3 returns and there is not an iota of evidence of any suppression or intent to evade payment of tax on appellant part. Further, the issue of taxability of reimbursement of expenses has travelled up to Hon‟ble Supreme Court and before many lower appellate forums. This shows that the issue involved is of pure interpretation of legal provisions and therefore it cannot be said that assessee has any mala fide intention. Further SCN is issued to the assessee based on all the details taken from assessee‟s records and appellant have not suppressed any fact with intention to evade payment of service tax. In these circumstances, charges of suppression or willful misstatement does not survive against assessee and thus extended period of limitation is not invokable in the present matter.

 

• As regard the revenue‟s appeal he submits that Ld. Commissioner has dropped demand of total service tax of Rs. 79,00,204/-. Further as per the working prepared by the appellant, demand of service tax to the tune of Rs. 11,59,917/- is dropped for the expenses actually treated as incurred as the impugned order has confirmed demand only on difference between amount appearing on credit side of ledger and amount appearing in debit side of ledger account.In respect of these two demands dropped by the adjudicating authority, there is no ground of appeal filed by the department and hence it is evident that department has not contested these demands being  The balance amount of demand dropped is Rs. 18,21,762

 

(1,08,81,883-7900204+ 1159917) which is in respect of demand dropped for examination charges and miscellaneous charges on which service tax stands paid under „agency charges‟. Thus, the appeal is filed by department is only against demand of Service tax dropped amounting to Rs, 18,21,762/-

. Thus, the amount of service tax involved in the appeal filed by the department is Rs. 18,21,762/- which is less than Rs. 50 lakhs. In terms of CBIC Instruction F. No. 390/Misc/116/2017-JC dated 22.08.2019, as amended, Revenue shall not file appeal in CESTAT where the amount involved in less than Rs. 50 Lakhs. Since the amount of tax involved in the appeal filed by the department is less than Rs. 50 Lakhs, he pray to dismiss the appeal filed by the department on the ground of Government‟s litigation policy apart from rejecting the same on merit.

 

• He further submits that Chartered Accountant‟s certified documents reflected all details relying on which and based on appropriate verification thereof, the impugned order is passed by the adjudicating authority. Therefore demand dropped by the Learned Commissioner is legally correct.

 

3. Shri Prakash Kumar Singh, Learned Authorized Representative for the Revenue reiterates the findings of impugned orders in respect of party‟s appeals and grounds of appeal in the Revenue‟s appeal.

 

4. Heard both sides, we have carefully considered submissions made by both the sides and perused the records.

 

• We first deal with the appeal filed by the Revenue. We find that after perusing the appeal memorandum filed by the Revenue only grounds are taken challenging the Commissioner‟s finding that he has not verified the ledger accounts and journal entries for the entire periods. The Adjudicating authorityought to have verified the records for the entire period of 2006-07 and 2007-08 before concluding that service tax has been paid on examination and miscellaneous charges under the head of agency charges. Dropping the demand of service tax without actual verification of financial records is not legal and proper. However as regard the said dispute we find that CA certified documents are submitted by the assessee before the Ld. Commissioner. The Ld. Commissioner in Para 54.2.6 and 54.2.7 of impugned order recorded the detail finding on said “Examination Charges” and “Miscellaneous Charges” and after verification of the month wise ledger, journal voucher, sample copies of bills and verification of the service tax paid by the assessee on taxable services Learned Commissioner concluded that service tax on „Examination Charges and Miscellaneous charges stands paid under the head “Agency Charges” for the period 2006-07 to 2007-08. Hence the order of the learned Commissioner dropping demand sustains and we do not find it necessary to interfere in his findings.

 

• We also find that after perusing the appeal memorandum filed by the Revenue no grounds are taken challenging the Commissioner‟s view for dropping demand of Rs. 79,00,204/- as stated in Para 57.10. of the impugned order in respect of freight forwarding activities which are not taxable under the category of CHA Service for Ahmedabad, Baroda and Nagpur and also ground of lack of Jurisdiction for Baroda and Nagpur, hence the order of the learned Commissioner dropping demandof Rs. 79,00,204/-

 

• Without prejudice, we also noticed that revenue in their appeal only challenged the dropped demand in respect of examination charges and miscellaneouscharges on which service tax stands paid under the head

„agency charges‟ during the period 01.04.2006 to 31.03.2008. The said facts clearly shown that the appeal filed by the department is for the demand amount which is less than Rs. 50 Lakhs. We agree with arguments of the assessee that in terms of CBIC Instruction F. No. 390/Misc/116/2017- JC dated 22.08.2019, as amended, revenue shall not file appeal in CESTAT where the amount involved is less than Rs. 50 Lakhs. For the aforesaid reasoning, we are of the considered view that for the said reason also Revenue‟s appeal is not maintainable on Government‟s litigation policy, thus rejected.

 

• Now we take up assessee‟s  We find that Ld. Commissioner has confirmed the Service tax demand on the ground that, the appellant in addition to the payment of service tax on agency charges was also required to pay service tax on charges for the CHA functions related to the entry or departure of conveyance or the import or exports of goods as well as service tax on the difference between the amount received from the client as reimbursable expenses and the amount spent/incurred. We do not agree with the view taken by the Adjudicating authority that the charges/ expenses recovered by the appellant from their clients towards, Amendment of Bills of Entry, cancellation of document charges, choking of containers, communication charges, conveyance, Craft paper charges, DEEC Charges, Delivery order charges, DEPB Charges, DFRC Charges, EOU Charges, EPCG Charges, Examination charges, Lashing charges, fumigation charges, Opening & Repacking/ strap ping charges, Palletisation charges, Repacking charges, release advice charges, sundries charges, loading charges etc. as part of CHA service. There is no dispute on the facts that on „agency charges‟ which are related to CHA services appellant are paying service tax. It is also fact that other than the „agency charges‟ other charges and expenses are also collected by the appellant from their clients and paid to the concerned service provider. Appellant not collected any service tax on above reimbursable expenses incurred on behalf their clients/ customers.

 

The appellant has rightly contended that these reimbursable expenses are not in the nature of service and, therefore, no Service Tax could have been levied.

 

• The issue that whether the reimbursable expenses should be part and parcel of the service charge of CHA has been clarified by the Board in the Circular No. B43/1/97-TRU dated 06.06.1997 which is reproduced below:

 

F.No. B 43/1/97-TRU, Dated 6-6-1997

Imposition of Service Tax on services rendered by Custom House Agents and Steamer Agents regarding.

By the issue of Notification No. 17/96-Service Tax dt. 6.6.97, service tax has been imposed on Custom House Agents and Steamer Agents w.e.f. 15.6.97. The service Tax is imposed under the provisions of Chapter V of the Finance Act, 1994 (32 of 1994), as amended.

2. CUSTOM HOUSE AGENTS

In the context of these two services, certain points have been raised for clarification which are discussed below:

• The expression “Custom House Agent” has been defined to mean a person licensed,temporarily or otherwise, under the regulations made under sub-section

(2) of Section 146 of the Custom Act, 1962. A person is permitted to operate as a Custom House Agent, temporarily under regulation 8(1) and permanently Regulations, 1984.

• Asper the Finance Act, 1997, the taxable service rendered by a Custom House Agent means any service provided to a client by a Custom House Agent in relation to the entry or departure of conveyances or the import or export of goods. The value of the taxable service in relation to the service provided by a Custom House Agent to a client has agent from the client for services rendered in any manner in relation to import or export of  The service tax is chargeable @ 5% on the value of the taxable service.
• The services rendered by the Custom House Agent are not merely limited to the clearing of the import and export consignment. The CHA also renders the service of loading/ unloading of import or export goods from /at the premises of the exporter / importer, the packing, weighment, measurement of the export goods, the transportation of the export goods to the customs station or the import goods from the customs station to the importer’s premises, carrying out of various statutory and other formalities such as payment of expenses on account of octroi, destuffing / pelletisation, terminal handling, fumigation, drawback/ DEEC processing, survey / amendment fees, dock fees, repairing and examination charges, landing and container charges, statutory labour charges, testing fees, drug control formalities, sorting / marking / stamping / sealing on behalf of the exporter / importer. The Custom House Agent also incurs various other expenses such as crane / fork lift charges, taxi charges, photostat and fax charges, bank collection charges, courier service charges, and miscellaneous other expenses on account of the exporter / importer. For all the above charges, the CHA is ordinarily reimbursed by the importer / exporter for whom the above services are rendered. Apart from the above charges, the CHA also charges the client for his service under the head / nomenclature of ‘agency and attendance charges’ or similar kind of heads which is purported to be his service charge in respect of the services rendered in relation to the import / export goods.

• It is clarified that in relation to Custom House Agent, the service tax is to be computed only on the gross service charges, by whatever head / nomenclature, billed by the Custom House Agent to the client. It is informed that the practice obtainingis to show the charges for services as “ agency commission”, “charges”, “agency and attendance charges”, “agency charges” and some similar descriptions. The service tax will be computed only with reference to such charges. In other words, payments made by CHA on behalf of the client, such as statutory levies (cess, Customs duties, port dues, etc.) and various other reimbursable expenses incurred are not to be included for computing the service

 

• In many cases, the Customs House Agent undertakes “turnkey” imports and exports where a lump sum amount is charged from the client for undertaking various services. In these cases, the lump sum amount covers not only the “agency commission” fee but also other expenses and no separate break-up is given in respect of these expenses. It has been decided that in such cases, the value of the taxable service shall be 15% of the lumpsum amount charged to the client.The Custom House Agents are required to show the service charges as 15% of such lumpsum amount of the bills and Service Tax of 5% will be chargeable on the above 15%.
• Some times, CHAs sub-contract their work to CHAs located in other stations. In such cases, it is possible that the sub-contracting CHA raises the bill on the main CHA who in turn raises the bill to the client. It has been decided that in such cases, the sub-contracting CHA will not be required to pay service tax on the bills raised by him on the main CHA, The service tax will be payable by the CHA who provides the actual service to the client and raises the bill to the client.

• A CHA may have various branch offices located at different stations but all these branch offices do not raise the bills and only the main or central office will be raising the bills. In such cases, only the central office should be registered with the Department.
• Sometimes, the bills raised by the CHA are not entirely paid by the client and the CHA is forced to give discounts. In such cases where the final bill raised is lower than the initial bill, it may be mentioned that the law provides for claiming of refund of excess service tax paid within six months from the date of paymentof tax. If the CHA can produce evidence of having charged less services fee, he may claim refund of excess service tax paid, if any, as per the provisions of law.

 

From the above portion of circular which is relevant to CHA service, it can be seen that during the provision of service of CHA the agency charges shall be taxable and reimbursable expenses incurred by CHA on account of various other expenses on behalf of the client cannot be part and parcel of the CHA service hence, the same cannot be taxable. Further we also observed that in the present case Learned Commissioner has no where specified that how these expenses/ charges were classified under the category of CHAs services. Hence, demand confirmed by the Learned Adjudicating authority is not legal and proper.

 

• We also find that the demand confirmed by the Ld. Commissioner on difference between the amounts received from the client as reimbursable expenses and the amount spent/ incurred not sustainable.Once the Ld. Commissioner hold that the reimbursable part of expenses is not taxable, then there is no legal basis to confirmed the service tax on differential amount under CHA services. Further, there is no evidences on records to establish that the said difference amount are pertaining to the „agency

 

charges‟. Therefore the service tax demand confirmed by the Ld. Commissioner on difference amount under CHA services is not sustainable.

 

• In the present matter Learned Commissioner also upheld the service tax demand on reimbursable expenses invoking Rule 5(2) of Service Tax (Determination of Value) Rules, 2006. We find that the Hon‟ble Apex Court in the case of UOI Intercontinental Consultants and Technocrats Pvt. Ltd. (supra) held Rule 5 of Service Tax (Determination of Value) Rules, 2006 as ultra vires to Section 67 therefore, considering this settled legal position, we are of the view that the reimbursable expenses incurred by the CHA which is other than the CHA Agency charges cannot be taxable hence, the demand of Service Tax on this count is clearly not sustainable.

 

• As regard the issue of wrong availment of Cenvat credit in respect of transportation services and photography services, we find that Ld. Commissioner as regard the said issue observed as under:

“ I find that at para 33 of the show cause notice, it is simply alleged that the said service provider has wrongly availed the cenvat credit on various input services such as transportation services and photography services which appeared inadmissible as per Rule 2(l) of Cenvat Credit Rules, 2004. I find that this is very crude way of demanding, wrongly availed cenvat credit, where neither the details of invoices, on the basis of which such cenvat credit has been availed is given nor there is any worksheet to show the quantification. I find that both the services in question do not have any nexus with the provisions of CHA service to qualify as “input service” as per Rule 2(l) of Cenvat Credit Rules, 2004. Therefore, the cenvat credit availed by the said service provider is required to be recovered from them under Rule 14 of the Cenvat Credit Rules, 2004.”

 

From the above finding of the Learned Commissioner we find that revenue in the present matter has not verified the Cenvat credit account and input services invoices received by the appellants which is the prime document for availment of Cenvat credit. Therefore, we hold that show cause notice is defective for want of evidence, i.e., invoices, quantification of Cenvat demand on input services. Without verifying the Cenvat Credit account and invoices of input services, the charge of wrong availment of Cenvat credit on the appellant is not sustainable. Consequently, Cenvat credit availed by the appellant cannot be denied only by relying the definition of input services provided in Cenvat Credit Rules 2004, in the absence of any supportive evidence.

 

• We also find that in Para 58 ofimpugned order Ld. Commissioner held that service provider has provided sufficient details of Cenvat Credit availed by them along with their ST-3 returns. Therefore the charges of suppressing the facts cannot sustain. When commissioner himself has held that the charge of suppression of the fact not sustain against the appellant, confirmation of demand of Cenvat credit beyond a normal period of one year by the  Commissioner in the present matter legally not correct. We are of the view that since the Cenvat documents have not been verified by the revenue, nor the longer period of limitation has been invoked specifically in the show cause notice, the proceedings flowing from such a defective show cause notice, are neither legal nor proper. Consequently, we set aside the Cenvat credit demand.

 

• The appellant have vehemently argued that the demand for the extended period is not sustainable being beyond the limitation of one year. We find that the appellant being CHA had been paying the Service Tax onthe CHA charges in terms of a Board Circular read with the judgment of Hon‟ble Supreme Court in the case of Intercontinental Consultants supra. At the relevant time the issue was not free from doubt. Therefore, lot of litigations were in pipeline, on the same issue and finally it was decided by the  Hon‟ble  Supreme  Court  and  the  Board  also  issued  a  Circular specifically for the CHA service that over and above the CHA service charges on reimbursement no service tax was payable. On this undisputed fact, we are of the view that the appellant have rightly entertained the bonafide belief that the over and above the CHA service charges, the reimbursement expenses are not taxable. Hence there is absolutely no suppression of fact on the part of the appellant, therefore the demand for the extended period is not sustainable also on the ground of limitation. Our above view is supported by the following Judgments:

• Inthe case of Adani Enterprise Ltd  CST the Hon‟ble Supreme Court has passed the following decision:

 

“19. As regard the limitation issue argued by the Learned Counsel, we find that in the facts of the present that firstly the issue involved is of pure interpretation of legal provisions therefore, it cannot be said that the Appellant had any mala fide intentions and have suppressed any fact with intention to evade payment of service tax. It is also on record that the Appellant have represented the matter before Audit team and also before department during the investigation of case. This clearly shows that there is no suppression or wilful misstatement on the part of the Appellant. The Appellant in the present matter also provided all the details/documents/records related to the disputed activity before department. In this circumstances charge of suppression or wilful misstatement do not survive against the Appellant. Thus extended period of limitation is also not invokable in the present matter and no penalty is payable.”

• In the case ofUOI Vs. Intercontinental Consultants and Technocrats Pvt.  the Hon‟ble Supreme Court has passed the following decision:

“29. In the present case, the aforesaid view gets strengthened from the manner in which the Legislature itself acted. Realising that Section 67, dealing with valuation of taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) which deals with ‘consideration’ is suitably amended to include reimbursable expenditure or cost incurred by the service provider and charged, in the course of providing or agreeing to provide a taxable service. Thus, only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Though, it was not argued by the Learned Counsel for the Department that Section 67 is a declaratory provision, nor could it be argued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature.”

In view of the above decision since the issue was admittedly involved interpretation of valuation provision under Section 67 that whether reimbursement expenses are includible in the gross value of Service charge of CHA, there is no suppression of fact. Hence, the demand for the extended period is not sustainable on the ground of time bar also.

 

5. In the result, Appeal filed by the assessee M/s. Jasvant B. Shah is allowed with consequential relief, as per law and Revenue‟s Appeal is dismissed. Miscellaneous application (ORS) is also disposed of.

(Pronounced in the open court on 17.08.2023)

 

(RAMESH NAIR) MEMBER (JUDICIAL)

(C L MAHAR) MEMBER (TECHNICAL)