2016 (2) TMI 806 - AT - Service Tax

Tribunal rules in favor of assessee, sets aside tax demand and penalty

Bhaven Desai Versus Commissioner of Service Tax, Mumbai

The Tribunal upheld the appellant's claim, ruling in favor of the assessee by setting aside the tax demand on reimbursed expenses and the penalty under ... Demand of service tax - valuation - reduction of reimbursement of expenses - seeking benefit of 'cum-tax' valuation and dropping of penalty under section 76 of Finance Act, 1994 - business auxiliary service being provided by the Bank - wrongful classification of service - Held that:- An existing service provider may, additionally, be required to operate a 'front office' of the client to reinforce the credibility of the financial products. These may be mandates of the client for which the client may have to make a separate payment - whether these are for actual or on lumpsum is a matter of commercial agreement. To the extent that compliance with these mandates are liable to classified only within services that are 'as yet' not taxable, it would be contrary to legislative sanction to determine tax liability on such receipts. The confirmation of demand, and approval thereof, by the lower authorities, thus, exceed limits envisaged by the legislature. We notice that the bulk of the expenses have been incurred on salaries, telephones, office space and advertisements, all of which may be considered to be essential to bringing the banking institution to the doorstep of the customer and is, thereby, inextricably enmeshed with the financial product offered by the bank. The costs claimed to be reimbursibles are, therefore, not attributable to the 'business auxiliary service' rendered by the assessee but to the cost of the product itself. Not surprisingly, the bank reimburses these expenses. Therefore, these fall outside the scope of inclusion within the meaning of 'gross amount charged' in section 67 of Finance Act, 1994 in the context of the identified taxable service. The assessee's claim of reimbursable expenses having been evidenced except for ₹ 52,96,730/- and the tax having been paid on the unevidenced portion of receipts, further demand of tax envisaged in the show cause notice fails to survive. It would appear that the adjudicating authority was itself not unambiguously certain about the taxability and its scope; the assessee cannot be placed on a higher pedestal of more exacting standards of comprehension and compliance. Invoking of section 73(4) of Finance Act, 1994 is, therefore, not warranted. The first appellate authority has dropped the penalty under section 76 of Finance Act, 1994.There is no justification for having continued with, the adjudication after the tax liability had been discharged. - Decided against the revenue and in favor of assessee. Issues Involved:1. Jurisdiction and authority of the adjudicating officer.2. Classification of services rendered.3. Inclusion of reimbursable expenses in the taxable value.4. Validity of penalties imposed under sections 76 and 78 of the Finance Act, 1994.5. Limitation period for the demand of tax.Issue-wise Detailed Analysis:1. Jurisdiction and Authority of the Adjudicating Officer:The appellant claimed that the adjudication proceeding was vitiated by lack of jurisdiction as their services were rendered at different places in the country. They also contended that the adjudicating authority arrogated the notice issued by the Joint Commissioner without a corrigendum of the show cause notice. The Tribunal found no lapse of jurisdiction or authority in the rendering of adjudication by the Additional Commissioner of Service Tax, Mumbai, concurring with the evaluation by the first appellate authority.2. Classification of Services Rendered:The appellant argued that the service rendered was not taxable on the relevant date and should be classified under 'support service of business or commerce' which was taxable only from 1st May 2006. The Tribunal observed that the activities of the appellant are covered by section 65(19)(ii) of the Finance Act, 1994, and the 'gross amount charged' in section 67 precluded acceptance of claim for abatement of reimbursements. The Tribunal noted that the appellant's activities included tele-calling, identifying potential customers, and sourcing applications, which are in effect a 'front office' of the bank, thus falling under 'business auxiliary service.'3. Inclusion of Reimbursable Expenses in the Taxable Value:The appellant claimed that the remuneration received was a per mensem amount of Rs. 40,000, and other inflows were reimbursements of expenses incurred on behalf of the client. The Tribunal found that tax cannot be determined on the total receipts owing to the qualification 'for such service rendered by him' in section 67 of the Finance Act, 1994. The Tribunal emphasized that the claim of reimbursable expenses was evidenced except for Rs. 52,96,730, and tax had been paid on the unevidenced portion. The Tribunal concluded that the reimbursable expenses are not attributable to the 'business auxiliary service' but to the cost of the product itself, falling outside the scope of inclusion within the 'gross amount charged.'4. Validity of Penalties Imposed under Sections 76 and 78 of the Finance Act, 1994:The first appellate authority had dropped the penalty under section 76 of the Finance Act, 1994. The Tribunal found no justification for continuing with the adjudication after the tax liability had been discharged and set aside the penalty under section 78 of the Finance Act, 1994.5. Limitation Period for the Demand of Tax:The appellant contended that the demand is barred by limitation. The Tribunal did not find sufficient grounds to address this issue separately as the primary contention regarding the inclusion of reimbursable expenses had been resolved in favor of the appellant.Conclusion:The Tribunal allowed the appeal of the assessee by setting aside the demand of tax on the reimbursed expenses and the penalty under section 78 of the Finance Act, 1994. The departmental appeal was found to be devoid of merit.