2025 (8) TMI 1219 - AT - Service Tax

Appeal allows quashing of service tax demands (2007-08 to 2014-15) for reimbursements, loan interest, facility charges; limitation bars notices

M/s. Saraf Agencies Pvt. Ltd. Versus Commissioner of Service Tax-I, Kolkata

M/s. Saraf Agencies Pvt. Ltd. Versus Commissioner of Service Tax-I, Kolkata - TMI ISSUES PRESENTED AND CONSIDERED 1. Whether demands for service tax confirmed for earlier years (2009-10, 2010-11) are barred by limitation and/or sustainable where ST-3 returns were regularly filed. 2. Whether reimbursements of electricity charges collected from tenants on actual basis are exigible to service tax or constitute non-taxable receipts. 3. Whether a demand based on differences between Profit & Loss Account figures (accrual) and ST-3 return figures (receipt) is a valid basis for levy of service tax. 4. Whether interest received on loans to group companies is taxable as consideration for a financial lease or any taxable service. 5. Whether reimbursement of Corporation Tax (miscellaneous income) is subject to service tax. 6. Whether recovery of CENVAT credit can be sustained where denial is premised on alleged non-payment within the financial year as distinct from the three-month period under the CENVAT Credit Rules. 7. Whether facility charges / cost-sharing amounts recovered from group companies constitute consideration for a taxable service (Business Support Service) or are non-taxable cost-sharing. 8. Whether penalty and invocation of extended period of limitation are sustainable where there was no suppression and the assessee was a registered return-filing taxpayer. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Limitation where ST-3 returns filed Legal framework: Extended period of limitation for service tax can be invoked where suppression or fraud is established; ordinary demands are subject to normal limitation. Registered assessees regularly filing returns enjoy protection against extended limitation absent suppression. Precedent treatment: The Tribunal relied on established principle that issuance of subsequent SCNs invoking extended limitation is not permissible without suppression (referenced Supreme Court authority on same principle). Interpretation and reasoning: The Tribunal found ST-3 returns were regularly filed and the demand in relation to 2009-10 and 2010-11 was founded on information already available in statutory returns; no suppression was shown. Thus the extended limitation could not be invoked to sustain the demand or penalty. Ratio vs. Obiter: Ratio - absence of suppression when returns were regularly filed precludes invoking extended limitation to confirm demand/penalty. Conclusion: Demands (and penalty) for the period in question are barred to the extent predicated on extended limitation and/or are unsustainable where based on information already declared in returns. Issue 2 - Reimbursement of electricity charges Legal framework: Taxability depends on whether the receipt is consideration for a service or a reimbursement/sale of goods; electricity has been treated as goods in certain authorities and reimbursements on actual basis are non-taxable. Precedent treatment: The Tribunal followed its prior decisions holding that actual reimbursements of electricity charges are not subject to service tax and relied on earlier Tribunal orders addressing similar lease/tenant arrangements. Interpretation and reasoning: Evidence (CA certificate) showed electricity bills paid by the appellant exceeded amounts recovered from tenants and collection was per lease agreement on actual basis. There was no service element; electricity supply treated as goods. Tribunal had no basis to reject submitted evidence or treat reimbursement as taxable consideration. Ratio vs. Obiter: Ratio - where electricity charges are reimbursed on actuals per lease and supported by records, such reimbursements are not exigible to service tax. Conclusion: Demand confirmed on reimbursement of electricity charges is set aside. Issue 3 - Demand based on Profit & Loss versus ST-3 discrepancies Legal framework: Service tax (during the relevant period) is payable on receipt basis; accounting P&L is prepared on accrual basis. Comparisons across bases can produce artificial differentials. Precedent treatment: Tribunal followed earlier decisions holding that differences between accrual-based P&L and receipt-based ST-3 cannot sustain a demand. Interpretation and reasoning: The Tribunal observed non-comparability of bases (accrual vs receipt) and absence of other indicia of undeclared receipts; reliance on P&L alone is not a valid ground for tax demand. Ratio vs. Obiter: Ratio - tax cannot be demanded solely on differential between accrual accounting and returns prepared on receipt basis. Conclusion: Demand based on Profit & Loss vs ST-3 differentials is set aside. Issue 4 - Interest income on loans vs financial lease consideration Legal framework: Interest on loans is not per se consideration for a taxable service unless the arrangement is demonstrably a financial lease or a service falls within charging provisions. Precedent treatment: The Department must prove the nature of transactions; mere characterization in show cause cannot substitute for evidence establishing service element. Interpretation and reasoning: The adjudicating authority confirmed tax on the premise that interest related to financial lease; Tribunal found no evidence to substantiate that premise and accepted appellant's evidence showing loans, not lease arrangements. Absent evidence of taxable service, interest receipts are not taxable. Ratio vs. Obiter: Ratio - interest received on bona fide loans to group companies, where not shown to be consideration for a taxable service or a financial lease, is not exigible to service tax. Conclusion: Demand on interest income is set aside. Issue 5 - Reimbursement of Corporation Tax Legal framework: Reimbursements of statutory taxes/charges are not consideration for services when they represent pass-through recovery of actual tax paid. Precedent treatment: Tribunal treated such reimbursements as non-taxable receipts where they are merely pass-through items in accounts. Interpretation and reasoning: The Tribunal found the miscellaneous income related to reimbursement of Corporation Tax and concluded there was no service element; hence not subject to service tax. Ratio vs. Obiter: Ratio - reimbursement of Corporation Tax is not chargeable to service tax when it is a mere recovery of tax paid. Conclusion: Demand on reimbursement of Corporation Tax is set aside. Issue 6 - Recovery of CENVAT credit where payment allegedly not within financial year Legal framework: CENVAT Credit Rules prescribe payment within three months of invoice (third proviso to Rule 7) for certain conditions; there is no general mandate to make payment within the same financial year. Precedent treatment: Tribunal relied on rule text and prior interpretations that deny recovery where denial is premised on a misreading of timing requirements. Interpretation and reasoning: There was no dispute over receipt/use of input service; denial of credit was on ground that payment was within the financial year, which the Tribunal found not mandated by the Rules. Therefore recovery demand was unsustainable. Ratio vs. Obiter: Ratio - denial of input credit solely on the basis that payment was not made within the same financial year is incorrect where Rules require compliance within three months, not within the financial year. Conclusion: Recovery of CENVAT credit on that ground is set aside. Issue 7 - Facility charges / cost-sharing between group companies Legal framework: Cost-sharing arrangements where expenses are incurred jointly and amounts recovered are merely apportionments of shared cost, without any separate service element, are not consideration for a taxable service; higher court authority recognizes such arrangements as non-service. Precedent treatment: Tribunal relied on Supreme Court precedent holding cost-sharing payments are not payments for services and on multiple Tribunal decisions applying that principle (including decisions in the appellant's group). Interpretation and reasoning: Evidence showed facility charges were sharing of expenses incurred by the appellant on behalf of group companies at agreed ratios and were recorded as establishment/facility charges; there was no service element. Relying on controlling precedent that cost-sharing is not a taxable service, the Tribunal rejected the Business Support Service classification. Ratio vs. Obiter: Ratio - cost-sharing receipts that represent an apportioned share of common expenses and lack a service element are not subject to service tax. Conclusion: Demand on facility charges / cost-sharing is set aside; extended-period demand on same ground also unsustainable. Issue 8 - Penalty and extended period where no suppression Legal framework: Extended limitation and penalties for suppression require a finding of suppression or fraudulent intent; regular filing and disclosure negate such findings. Precedent treatment: Tribunal applied Supreme Court authority that a subsequent SCN invoking extended limitation is impermissible where prior notice exists and no suppression established. Interpretation and reasoning: The Tribunal held there was no suppression-returns and statutory records disclosed the transactions-and noted an earlier SCN had been issued on related matters; consequently extended limitation and penalty could not be sustained. Ratio vs. Obiter: Ratio - absent suppression, extended limitation and penalty are not sustainable against a registered, regular return-filing assessee. Conclusion: Penalties and extended-period demands are set aside.