2018 (6) TMI 789 - AT - Service Tax

Tribunal excludes reimbursable expenses from service tax calculation, penalties overturned

The Tribunal ruled in favor of the appellant, holding that reimbursable expenses should not be included in the taxable value for service tax calculation. ... Valuation - Manpower Recruitment and Supply Agency Services - inclusion of reimbursable expenses - amounts received towards reimbursable expenses during the period March 2007 and June 2007 - Held that:- The appellant is engaged in providing manpower recruitment and supply agency service. It is not in dispute that the appellant has made such payments on behalf of the client M/s. Subiksha Trading Services. In the contract, it has been stated that while paying wages, the appellant has to deduct PF / ESI etc. as applicable and remit the same to the authorities concerned - Merely because the liability to deduct is cast upon the appellant, it cannot be said that these expenses are not reimbursable expenses when the client later reimburses the same to the appellant. Appeal allowed - decided in favor of appellant. Issues:1. Inclusion of reimbursable expenses in taxable value for service tax calculation.2. Applicability of penalties under sections 76 and 78 of the Finance Act, 1994.Analysis:Issue 1: Inclusion of Reimbursable Expenses in Taxable ValueThe case involved a dispute regarding the inclusion of reimbursable expenses in the taxable value for service tax calculation by a manpower recruitment and supply agency service provider. The appellant argued that the reimbursable expenses, such as PF and ESI contributions, should not be included in the taxable value as these were reimbursed by the client. The appellant contended that the liability to pay these expenses was on the client, and the appellant merely acted as a conduit for payment. The Tribunal noted that the appellant had made payments on behalf of the client, which were later reimbursed. Relying on legal precedents, the Tribunal held that such reimbursable expenses should not be included in the taxable value. The Tribunal referred to the cases of Intercontinental Consultants and Technocrats P. Ltd. and Sangamitra Services Agency to support its decision. Consequently, the Tribunal set aside the demand raised by the tax authorities, along with penalties, and allowed the appeal with consequential relief.Issue 2: Applicability of Penalties under Sections 76 and 78 of the Finance Act, 1994The tax authorities had imposed penalties under sections 76 and 78 of the Finance Act, 1994, on the appellant for non-payment of service tax on reimbursable expenses and discrepancies in financial reporting. The Commissioner (Appeals) upheld the penalties under section 78 but set aside the penalty under section 76. The appellant challenged the penalties before the Tribunal. After considering the arguments from both sides and examining the records, the Tribunal found in favor of the appellant. The Tribunal's decision to set aside the penalties was based on the conclusion that the demand for including reimbursable expenses in the taxable value was not valid. As a result, the penalties imposed by the tax authorities were also set aside, and the appeal was allowed with any consequential relief deemed necessary.In summary, the Tribunal ruled in favor of the appellant, holding that reimbursable expenses should not be included in the taxable value for service tax calculation. The penalties imposed under sections 76 and 78 of the Finance Act, 1994, were set aside due to the invalidity of the demand for including such expenses. The decision was supported by legal precedents and the specific contractual arrangements between the parties involved.