2011 (4) TMI 1087 - HC - Service Tax

High Court rules recipient not liable for service tax from foreign company pre-2006

The High Court upheld the Tribunal's decision, ruling that the assessee was not liable to pay service tax for services received from a foreign company ... Whether Tribunal was right in holding that the assessee is not liable to pay service tax for the services received during the relevant period from foreign company - Revenue has preferred this appeal challenging the order passed by the Tribunal - Held that:- prior to 18-4-2006 the service tax was not payable by the recipient, in the event the service provider was outside the country and. he had no permanent address or place of business within the country, Tribunal cannot be found fault with, appeal dismissed Issues:- Liability of the assessee to pay service tax for services received from a foreign company.- Interpretation of Section 66A(2) regarding the liability to pay service tax.Analysis:Issue 1: Liability of the assessee to pay service tax for services received from a foreign companyThe case involved the appellant challenging an order by the Tribunal stating that the assessee was not liable to pay service tax for services received from a foreign company. The assessee had paid royalty fees to their holding company for supplying technical data, and a show-cause notice was issued demanding service tax. The assessee contended that the payment was for the use of technology and did not involve the rendering of technical assistance. The Assistant Commissioner rejected this explanation, confirmed the demand, and imposed a penalty. The Commissioner of Central Excise set aside the order regarding royalty fees, leading to the Revenue appealing to the Tribunal. The Tribunal, citing precedent judgments, held that the assessee was not liable to pay service tax as the provider of service, being a foreign company, should have paid the tax.Issue 2: Interpretation of Section 66A(2) regarding the liability to pay service taxThe Tribunal reasoned that during the relevant period, the liability to pay service tax was on the provider of service and not the recipient, especially if the provider was a company. It was highlighted that only from 18.04.2006 onwards, with the introduction of Section 66A(2), the liability shifted to the service recipient. The Tribunal dismissed the appeal based on this interpretation. The High Court referred to a previous case involving Micro Labs Ltd. where it was clarified that the Central Government could specify a person other than the service provider to pay tax. The introduction of Section 66A in 2006 made it clear that services received from outside India would be taxable, treating the recipient as the service provider for tax purposes. Therefore, prior to 2006, the service tax was not payable by the recipient if the service provider was outside the country and had no permanent address or place of business within India.In conclusion, the High Court upheld the Tribunal's decision based on the interpretation of Section 66A(2) and precedent judgments, dismissing the appeal as the service tax liability was not on the assessee for services received from a foreign company during the relevant period.