2025 (9) TMI 622 - AT - Service Tax

Subcontractor held liable to pay service tax on commission under Business Auxiliary Services; reverse charge prevents double levy

M/s Tapasya Projects Ltd. Versus Commissioner of Central Excise & CGST, Lucknow

CESTAT (All) - AT dismissed the appeal, holding the subcontractor liable to discharge service tax on commissions as a separate obligation even if the main ... Liability of the sub-contractor to pay the service tax in respect of the services provided to the main contractor - Business Auxiliary Service - appellant received commission for mobilizing funds in insurance policies - HELD THAT:- This issue has been considered and decided by the Tribunal in the case of CST Vs Melange Developers P. Ltd., [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] by holding that the liability to pay service tax of sub-contractor needs to be discharged separately by the sub-contractor, even if the tax on the entire value has been paid by the main contractor. It is also noted that the service tax has been demanded from the sub-contractor appellant under the taxable category of “Business Auxiliary Services” on the commission received from the M/s Ritu Tandon for arranging the clients for her. Service tax on the services rendered by M/s Ritu Tandon under the category of 'insurance agent service' has been discharged by the insurance company (M/s Birla Sun Life Insurance Company) on reverse charge basis. Thus, neither the tax has been demanded from the appellant under the same category nor the tax has been demanded on the same transaction. Thus there are no merits in the submissions made by the appellant that demand of service tax made from him under this category would result in the double levy of tax, and reject the same. There are no merits in this appeal - appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether a sub-contractor is liable to pay service tax on taxable services rendered to a main contractor even if the main contractor has discharged service tax on the overall transaction. 2. Whether the commission received by the appellant for arranging clients for an insurance agent falls within 'business auxiliary service' and is taxable as such. 3. Whether the proviso to the limitation provision (proviso to Section 73(1)) for invocation of extended period applies where there is suppression/concealment with intent to evade tax and thus whether the demand is time-barred. 4. Whether penalties under the Finance Act (Sections 77/78) are sustainable in the facts where returns were not filed and taxable value was allegedly concealed. 5. Whether interest under the statute is automatically payable once tax is held to be demandable. ISSUE-WISE DETAILED ANALYSIS - 1. Liability of sub-contractor when main contractor has paid tax Legal framework: Sections 66/68 (levy and person liable) and the Cenvat/Credit Rules scheme (credit for tax paid at earlier stages) govern liability and credit. Master Circular (23-8-2007) clarified sub-contractor liability. Larger Bench and subsequent Division Bench decisions addressed double taxation and credit. Precedent treatment: The Tribunal (larger bench and subsequent judgments) has held that a sub-contractor is a taxable person and liable to pay service tax even if the main contractor paid tax; decisions holding the contrary were overruled where inconsistent with the Cenvat scheme. The Tribunal's Melange Developers larger-bench view is relied upon and affirmed by later tribunals and the Supreme Court (not cited by name here in headnote but referenced in text as affirmed). Interpretation and reasoning: The Court reasoned that: (a) the sub-contractor provides a taxable service by virtue of the nature of activities undertaken; (b) the Cenvat/Credit Rules prevent multiplicity of burden because the main contractor can take credit for tax paid by sub-contractors (or vice versa) subject to rules; (c) absence of an exemption or statutory provision displacing liability means each taxable service provider must discharge tax on services rendered; and (d) earlier circulars or trade notices superseded by the Master Circular cannot exempt sub-contractors. Ratio vs. Obiter: Ratio - A sub-contractor must discharge service tax on taxable services rendered even if the main contractor has discharged tax on the overall contract; the Cenvat scheme addresses any risk of double taxation via credit. Obiter - discussion of specific past decisions that took a contrary view and their treatment as overruled. Conclusion: The appeal on ground of alleged double taxation is rejected; the sub-contractor is liable to pay service tax independently, and that liability is not negated by the main contractor having paid tax. ISSUE-WISE DETAILED ANALYSIS - 2. Classification of commission as 'Business Auxiliary Service' Legal framework: Definition of 'business auxiliary service' (Section 65(19) as reproduced) including 'promotion or marketing of service provided by the client' and specific inclusion of commission agent and 'evaluation or development of prospective customer' as auxiliary activities. Precedent treatment: Authorities and the impugned orders applied the definition literally to activities such as arranging clients and earning commission. Interpretation and reasoning: The Court examined the nature of activity-arranging clients for an insurance agent and receiving commission-and found it falls within promotion/marketing/evaluation of prospective customers and the definition's express inclusion of commission agent. The appellant failed to produce documentary evidence showing the commission income had already 'suffered' service tax such that appellant's receipts would be non-taxable. Ratio vs. Obiter: Ratio - Commission earned for arranging clients for an insurance agent constitutes business auxiliary service and is taxable unless convincingly shown otherwise. Obiter - detailed recitation of the statutory text and explanations clarifying commission agent scope. Conclusion: The commission receipts were properly treated as taxable under Business Auxiliary Services; appellant's challenge on classification fails for lack of evidence. ISSUE-WISE DETAILED ANALYSIS - 3. Applicability of extended period (proviso to Section 73(1)) / limitation Legal framework: Proviso to Section 73(1) extends limitation where tax was not paid due to suppression/concealment with intent to evade; mens rea and evidentiary requirements govern invocation. Precedent treatment: Jurisprudence requires that extended period can be invoked when facts demonstrate suppression/intent; bona fide belief is insufficient unless supported by objective grounds. Master Circular and case law cited show interplay with trade notices and reliance on certificates does not automatically establish bona fide belief. Interpretation and reasoning: The Court found objective indicia of concealment: non-registration, non-filing of ST-3 returns, failure to declare commission in statutory returns, contradictory statements, and contract clause allocating service tax liability to the sub-contractor. Absence of documentary proof that tax was already discharged by the service recipient or principal undermined claims of bonafide belief. Therefore ingredients for invoking extended period exist. Ratio vs. Obiter: Ratio - Extended limitation applies where there is concealment/suppression with intent to evade, and such intent may be inferred from concealment of taxable value, failure to file returns, and contractual allocations; mere claim of bona fide belief without supporting contemporaneous evidence is insufficient. Obiter - reference to authority that bonafide belief must be based on some facts on record. Conclusion: Extended period was correctly invoked; demand is not time-barred. ISSUE-WISE DETAILED ANALYSIS - 4. Imposition of penalties under Sections 77/78 Legal framework: Statutory penalty provisions apply where tax is not paid/short paid and where extended period is invokable; penalty discretion and mandatory aspects considered in higher authority decisions referenced. Precedent treatment: Apex and tribunal decisions indicate that once conditions for extended period and statutory threshold (suppression/intent) are established, penalties under the pertinent provisions are sustainable; bona fide belief may mitigate only if supported by facts. Interpretation and reasoning: Given findings of concealment, non-filing of returns, contradictory statements, and contractual allocation, the Court concluded that conditions for penalty imposition existed. The Court relied on authority that when extended period applies for suppression/intent, penalties under the statute are properly imposed; also held that non-registration and non-filing justify penalty under Section 77. Ratio vs. Obiter: Ratio - Penalties under the Finance Act are justified where suppression/intent to evade is established and failure to register/file returns is shown; penalties under Section 77/78 appropriately follow such findings. Obiter - explanatory discussion of the jurisprudence around mandatory vs. discretionary penalties. Conclusion: Penalties imposed were justified and upheld. ISSUE-WISE DETAILED ANALYSIS - 5. Interest on demandable tax Legal framework: Statutory interest provisions require payment of interest where tax is demandable under the Finance Act. Precedent treatment: It is established that interest follows tax liability; once tax is held payable, interest as prescribed attaches. Interpretation and reasoning: Having upheld the tax demand, the Court held that interest must be recovered in accordance with law; no separate relief on interest was warranted. Ratio vs. Obiter: Ratio - Interest is automatically payable once tax demand is sustained. Obiter - none beyond application of settled principle. Conclusion: Demand for interest is upheld. Cross-references and Final Disposition All issues are interlinked: classification as business auxiliary service (Issue 2) establishes taxable event; sub-contractor liability (Issue 1) establishes person liable; concealment and non-filing (Issue 3) justify extended limitation and feed into penalty analysis (Issue 4); taxability leads to interest (Issue 5). For these reasons, the Court affirmed the demand, interest and penalties and dismissed the appeal.