2009 (6) TMI 155 - AT - Service Tax

CESTAT Tribunal rules in favor of appellant, finding service tax demand time-barred.

The Appellate Tribunal CESTAT, Ahmedabad ruled in favor of the appellant in a dispute over the imposition of service tax on charges by a stockbroker to ... Stock broker service - Dispute in the present appeal relates to the charges made by the appellant who is engaged in providing services of stock broker, to National Stock Exchange (NSE) or SEBL. It is the appellant’s contention that such NSE or SEBI charges are made by the National Stock Exchange and are paid by them to National Stock Exchange and they merely recovers the same as an agent from their customers. As such, no service tax can be levied on the same. - We prima facie find force in the above contention of the appellant and also find that the demand in question is barred by limitation having been raised by Show Cause notice dt. 10-4-08 for the period April 2003 to 31-3-07. The appellant has been filing regular returns with the department who was aware of such NSE transaction charges by the appellant from their customers. – Stay granted Issues:Dispute regarding service tax on charges by a stockbroker to National Stock Exchange (NSE) or SEBI. Appellant's contention of not being liable for service tax. Adjudicating authority's view on the liability of the broker for the charges. Appellant's argument on the subsequent inclusion of NSE charges under service tax. Issue of limitation in raising the demand for service tax.Analysis:The judgment by the Appellate Tribunal CESTAT, Ahmedabad involved a dispute concerning the imposition of service tax on charges by a stockbroker to National Stock Exchange (NSE) or SEBI. The appellant argued that they were not liable for the service tax as they merely acted as agents in recovering charges from their customers. On the contrary, the adjudicating authority held that the charges were the broker's liability and not of the buyer or seller, thus disqualifying the appellant from being considered an agent for tax deduction purposes.The appellant contended that NSE charges were brought under service tax from May 2008 onwards and, therefore, should not be taxed retrospectively for the period from 1-4-03 to 31-3-07. Citing precedent [Board of Control for Cricket in India - 2007 (7) S.T.R. 384 (Tri.-Mumbai)], the appellant argued that any service made taxable later cannot be taxed under a different category prior to its inclusion. This argument challenged the demand for service tax on NSE transaction charges for the mentioned period.The Tribunal, after considering the arguments, found merit in the appellant's contentions. They observed that the demand for service tax was time-barred as it was raised through a Show Cause notice dated 10-4-08 for the period from April 2003 to 31-3-07. The appellant had been transparent in disclosing the NSE transaction charges to the Revenue through regular returns and correspondence. The Tribunal noted that the Revenue was aware of these charges, as evidenced by the appellant's communications, making the demand raised in 2008 beyond the limitation period.Consequently, the Tribunal granted the appellant an unconditional stay, indicating a prima facie view in favor of the appellant's position. The judgment, pronounced on 22-6-2009, highlighted the importance of timely action and adherence to tax regulations in such disputes.