2018 (8) TMI 1173 – CESTAT KOLKATA – TMI – Telephone Service – Internet Telecommunication Service – Leased Circuit Service – Reverse Charge Mechanism – demand of Service Tax – Held that:- Since all the relevant documents showing that the service tax was paid by the appellant to the service providers were filed before the Adjudicating Authority, the demand cannot be collected again from the appellant.
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This is a case of procedural lapse and it has been decided in various decisions by the Tribunal, Hon’ble High Courts and Hon’ble Supreme Court time and again that tax cannot be demanded for the second time once it has been established that it was already paid by the appellant.
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Appeal allowed – decided in favor of appellant. – ST/76085/2018 – FO/76506/2018 – Dated:- 6-8-2018 – Shri P.K.Choudhary, Member (Judicial) Shri N.D.Saha, Advocate for the Appellant (s) Shri A.K.Biswas, Suptd.(AR) for the Respondent (s) ORDER Per Shri P.K.Choudhary The appellant BSNL is registered as a pr
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e of procedural lapse and there have been no loss of revenue to the Govt. exchequers. He also submits that subsequent to the period under dispute assessee has been regularly discharging their service tax liability under the reverse charge mechanism and there is no repetition of such default. Ld. Advocate relied upon the decision of the Hon ble Supreme Court in the case of M/s. Hindustan Coca Cola Beverage Pvt Ltd vs. Commissioner of Income Tax in Civil Appeal No.3765 of 2007 dated 16.08.2007. 3. Ld. DR reiterates the orders of the lower authorities. 4. Heard both sides and perused the appeal records. 5. Ld. Advocate made the Bench go through various replies to audit memos for the inspection period 2012-13 and 2013-14 from page 40 to 61 of the appeal paper book. It has been mentioned in those replies that due to late receipt of the Notification No.30/2012-ST dated 20.06.2012 and apprehend the contention took some time in complying with the provisions as envisages in the aforesaid notifi
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ld to be an assessee in default , there could be no recovery of the tax alleged to be in default once again from the appellant considering that Pradeep Oil Corporation has already paid taxes on the amount received from the appellant. It is required to note that the department conceded before the Tribunal that the recovery could not once again be made from the tax deductor where the payee included the income on which tax was alleged to have been short deducted in its taxable income and paid taxes thereon. There is no dispute whatsoever that Pradeep Oil Corporation had already paid the taxes due on its income received from the appellant and had received refund from the tax department. The Tribunal came to the right conclusion that the tax once again could not be recovered from the appellant (deductor assessee) since the tax has already been paid by the recipient of income. 10. Be that as it may, the circular No.275/201/95-IT (B) dated 29.01.1997 issued by the Central Board of Direct Taxe
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