2013 (7) TMI 151 - AT - Service Tax

Merchant banker wins appeal on service tax liabilities for bank fees and IPO income

M/s JM FINANCIAL SERVICES PVT LTD Versus COMMISSIONER OF SERVICE TAX, MUMBAI-I

The tribunal ruled in favor of the appellant, a merchant banker, in a case concerning service tax liabilities on processing fees from a bank, share income ... Merchant banker - taxability of various activities i.e Brokerage/Commission, IPO, Brokerage/Commission-Fixed income product, IPO Finance Fee, Processing Fee, Recovery of commission expenses under the category of Business auxiliary services, Banking & Financial Services, Business support services - Held that:- there is no element of promoting or marketing of any services of the bank nor any service has been provided to the bank by the appellant on behalf of any client. - the tax liability on the incentive or processing fees received from the Bank is held to be not taxable to Service Tax under the heading ‘Business Auxiliary Services'. No service has been rendered by the appellant to the finance company and the activity has been done on the principal-to-principal basis - thus no Service Tax is leviable on the amount received by the appellant by way of share of income from NBFC in the activity of financing. Reimbursement of common expenses in the nature of electricity and other expenses incurred commonly by the appellant - no service can be stated to have been rendered thus the appellant is not liable to Service Tax. The levy of Service Tax on the share income as the result of IOP financing received from the NBFC Company is not liable to be taxed - Service Tax in respect of Processing Fee received from the Bank also to be set aside - penalties imposed on the appellant also set aside by the court. The appeal is allowed in the favour of the assessee. Issues:1. Service tax liability on amounts received as processing fees from the Bank under 'Business Auxiliary Services'.2. Service tax liability on share income from IPO financing received from the NBFC under 'Banking & Financial Services'.3. Taxability of reimbursement of common expenses under 'Business Support Services'.4. Penalties imposed under Section 77 and 78 of the Finance Act, 1994.Issue 1: Service tax liability on amounts received as processing fees from the Bank under 'Business Auxiliary Services':The appellant, a merchant banker, received processing fees from a bank for depositing IPO money. The Revenue claimed the fees were taxable under 'Business Auxiliary Services'. The tribunal held that the payment by the bank was a reward or incentive for business and not taxable under 'Business Auxiliary Services' as no service was provided to the bank. The appellant's argument that the receipt was not linked to services or interest earned by the bank was accepted, leading to setting aside the Service Tax levy on processing fees.Issue 2: Service tax liability on share income from IPO financing received from the NBFC under 'Banking & Financial Services':The appellant advised clients to invest in IPOs and facilitated short-term funding through an agreement with an NBFC. Revenue argued that the income received was taxable under 'Business Auxiliary Services'. However, the tribunal found that no service was provided to the finance company, and the activity was on a principal-to-principal basis, akin to a partnership. Citing a Board's Circular, the tribunal set aside the Service Tax levy on share income from NBFC financing.Issue 3: Taxability of reimbursement of common expenses under 'Business Support Services':The appellant received reimbursement for common expenses from group companies. Revenue claimed it fell under 'Business Support Services'. The tribunal held that no service was rendered for the expenses, and reimbursement for electricity and office expenses was not taxable under 'Business Support Services'. The lack of evidence from the Revenue to establish taxable service led to setting aside the Service Tax levy on common expenses reimbursement.Issue 4: Penalties imposed under Section 77 and 78 of the Finance Act, 1994:Given the findings on the above issues, the tribunal set aside the penalties imposed under Section 77 and 78 of the Finance Act, 1994. The appeal was allowed, and the Service Tax levies on share income, processing fees, and common expenses reimbursement were all set aside.This detailed analysis of the judgment highlights the key issues addressed by the tribunal and the reasoning behind setting aside the Service Tax levies and penalties imposed in the case.