2026-VIL-866-CESTAT-DEL-ST
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SERVICE TAX CESTAT Cases

Service Tax - Construction Services - Burden of Proof - Demand of service tax on construction of residential complexes based on an intelligence report alleging non-payment of tax on certain services - Whether the burden lies on the revenue to establish that construction services were for residential complexes, thereby making them taxable, or whether the appellant must prove that the construction was of individual houses which are exempt from service tax - HELD - The principle "he who asserts has to prove" applies to tax assessments, and where the Department issues notice alleging construction of taxable residential complexes, it is incumbent upon the Department to substantiate its allegations with documentary evidence during the assessment proceedings itself. Since the Department failed to produce sufficient evidence beyond the appellant's production of maps to establish that the constructions were indeed of residential complexes as opposed to individual houses, the burden not having been discharged by the revenue, the demand cannot be sustained - The confirmation of the demand for service tax on construction of residential complexes is set aside and the appeal is allowed - Service tax demand of additional payments based solely on a legal notice - The second demand for service tax is based solely on a legal notice issued by the client's advocate asserting that additional payments were made for commercial construction services - Whether a legal notice between parties constitutes sufficient evidence to establish receipt of additional consideration for taxable services – HELS - A mere legal notice from one party's advocate claiming additional payments is not competent evidence to establish the actual receipt of consideration by the service provider, particularly when the service provider disputes the claim through a counter notice and neither party has pursued the matter through civil proceedings or obtained any judicial determination. Without credible evidence establishing that additional amounts were actually received as consideration for taxable services, the demand cannot be sustained. The confirmation of this demand is also set aside and the appeal is allowed.
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GSTAT Appeal filed wrongly...
By CA Vivek Jalan

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