2011 (9) TMI 837 - AT - Service Tax

ITC Hotels: Amalgamation Date, Service Tax Ruling

COMMISSIONER OF SERVICE TAX, DELHI I Versus ITC HOTELS LTD

The Tribunal upheld the Commissioner (Appeals)'s decision, determining the effective date of amalgamation as 1.4.2004. Services provided by ITC Hotels ... Refund claim on the ground of amalgamation of companies providing services each other from last date. - Effective date of amalgamation - date of agreement or date of approval from high court - they filed refund claims of service tax paid during the period, on the ground that consequent upon amalgamation of the two with the holding company with effect from the appointed date they were one and the same entities and as such and The effective date as defined in the scheme of amalgamation approved by the Hon'ble High Court is the date relating to the implementation of the order as is clear from the date appearing in the said scheme - Held that:- As such, the service tax provided to the ITC Ltd. and Ansal Hotels Ltd. have to be considered as having been provided on behalf of the transferee company viz. ITC. Ltd., in which case, no service tax liability would arise against the service provider. - Decided in favor of assessee. Issues Involved:1. Determination of the effective date of amalgamation.2. Liability of service tax on services provided during the period of amalgamation.3. Refund claim of service tax paid during the period of amalgamation.Issue-wise Detailed Analysis:1. Determination of the Effective Date of Amalgamation:The primary issue in the case was to determine the effective date of amalgamation between M/s ITC Hotels Ltd., M/s Ansal Hotels Ltd., and ITC Ltd. The original adjudicating authority considered the effective date as 23.3.2005, the date when the application was filed with the Registrar of Companies. However, the Commissioner (Appeals) held that the effective date should be 1.4.2004, as per the Scheme of Amalgamation approved by the Hon'ble Delhi High Court and Hon'ble Kolkata High Court. The Commissioner (Appeals) relied on the principle laid down by the Hon'ble Supreme Court in the case of Marshall Sons & Co (India) Ltd. vs. Income Tax Officer, which stated that the date provided in the Scheme of Amalgamation is the effective date.2. Liability of Service Tax on Services Provided During the Period of Amalgamation:The Commissioner (Appeals) held that any service provided by ITC Hotels Ltd. to ITC Ltd. and M/s Ansal Hotels Ltd. from 1.4.2004 should be considered as a service provided to itself, as the entities ceased to exist as independent entities from that date. Therefore, such services were not liable to service tax. This decision was contested by the Revenue, arguing that the services provided before 23.3.2005 should be liable to service tax as the entities were separate until that date. The Tribunal, however, upheld the Commissioner (Appeals)'s decision, stating that the appointed date of 1.4.2004 must be considered the effective date of amalgamation, following the Supreme Court's ruling in the Marshall Sons case.3. Refund Claim of Service Tax Paid During the Period of Amalgamation:The respondents filed a refund claim amounting to Rs.88,54,473/- for the service tax paid during the period from April 2004 to September 2004. The original adjudicating authority rejected the claim, but the Commissioner (Appeals) directed the adjudicating authority to verify and confirm that the service tax paid pertained to services provided by ITC Hotels Ltd. to ITC Ltd. and M/s Ansal Hotels Ltd. only. The Tribunal agreed with this directive, stating that the refund should be sanctioned after verifying that the service tax was paid for services provided to the amalgamated entity and ensuring that the incidence of service tax had not been passed on to any other person.Conclusion:The Tribunal upheld the Commissioner (Appeals)'s decision, confirming that the effective date of amalgamation was 1.4.2004, as per the Scheme of Amalgamation approved by the High Courts. Consequently, services provided by ITC Hotels Ltd. to ITC Ltd. and M/s Ansal Hotels Ltd. from that date were considered as services provided to itself, and therefore, not liable to service tax. The Tribunal also directed the adjudicating authority to verify the refund claim and ensure compliance with Section 11B of the Central Excise Act, 1944, before sanctioning the refund. The Revenue's appeal was rejected.