2014 (11) TMI 122 - AT - Service Tax

Inclusion of TDS in Service Tax Calculation Upheld by Tribunal

SHELADIA RITES (JV) Versus COMMR. OF C. EX., ST. & CUS., VISAKHAPATNAM-II

The Tribunal held that Tax Deducted at Source (TDS) paid by NHAI should be included in the gross amount for service tax calculation, as it constitutes an ... Waiver of pre deposit - Valuation of goods - Inclusion of TDS deducted - Held that:- once the tax paid by the service recipient as TDS to the income tax department is claimed as a deduction, it forms part of the income by the assessee. Once the assessee or appellant shows the amount deducted as TDS and deducts it from the amount of tax payable, such tax deduction claimed would automatically become part of the total income earned. What is an income earned from the activities for the purpose of income tax, cannot be considered as not amounting to an income for the purpose of service tax. In this case, the assessee income tax department as well as NHAI agree that the amount paid by NHAI is part of the income tax payable by the assessee and once it is part of the income tax payable, it cannot be said that it is not part of the income and once it is part of the income, it cannot be said that it has not arisen as a result of service rendered to NHAI unless it is shown to the contrary. No such situation exists here - Prima facie case against assessee - Partial Stay granted. Issues:1. Inclusion of Tax Deducted at Source (TDS) paid by NHAI in the gross amount for service tax levy.2. Requirement of pre-deposit for hearing the appeal.Analysis:1. The first issue revolves around the inclusion of Tax Deducted at Source (TDS) paid by NHAI in the gross amount for service tax levy. The appellant argued that the TDS paid by NHAI, beyond the amount charged for services, should not be considered as part of the income for service tax purposes. The appellant relied on a previous Tribunal decision and contended that TDS should not be included in the gross amount. However, upon further examination, the Tribunal found that previous decisions were not adequately discussed. Referring to the case of Louis Berger International, the Tribunal concluded that TDS should be considered as an amount payable to the income tax department on behalf of the appellant by the service recipient, and thus, cannot be excluded from the gross amount for service tax calculation. The Tribunal emphasized that as per Section 67 of the Finance Act, 1994, service tax is levied on the gross amount charged, irrespective of whether the TDS amount was paid separately by NHAI.2. The second issue pertains to the requirement of pre-deposit for hearing the appeal. The Tribunal noted that the appellant had not provided sufficient evidence of financial difficulties despite pleading so. Considering the total amount payable and the period in question, the Tribunal directed the appellant to deposit a specific sum within a stipulated timeframe. The Tribunal emphasized that the entire tax amount needed to be deposited as a pre-condition for hearing the appeal. Upon compliance with the deposit requirement, the Tribunal waived the pre-deposit of the remaining dues and granted a stay against recovery during the appeal's pendency. The Tribunal's decision was based on the lack of prima facie merit in favor of the appellant, emphasizing the importance of meeting the pre-deposit obligation for appeal hearings.In conclusion, the judgment addressed the issues of including TDS in the gross amount for service tax calculation and the requirement of pre-deposit for hearing the appeal, providing a detailed analysis and decision on each matter based on relevant legal provisions and precedents.