2025 (10) TMI 11 - AT - Service Tax

TDS remitted to Income Tax Dept for foreign service provider not part of taxable consideration under s.67(1)(a)

International Flavours & Fragrances India P. Ltd. Versus Commissioner of GST & Central Excise, Chennai

For July 2012-October 2013 under reverse charge, CESTAT CHENNAI - AT held that the appellant's TDS remitted to the Income Tax Dept on behalf of a foreign ... Liability of service tax - TDS portion of the foreign currency remittances for the services received by the appellant - period from July 2012 to October 2013 - reverse charge mechanism - HELD THAT:- It is found that the appellant has imported services from the foreign service provider and paid the consideration as indicated in the invoice. No TDS has been deducted by them from the invoice value. The TDS paid by them was to comply with the provisions of the Income Tax Act. The appellant submits that service tax was paid on the gross value as per section 67 without making any deductions towards the “withholding of tax”. It is agreed with the contention of the Appellant that the amount would not be part of the consideration for the taxable services received by them as per Section 67(1)(a) of the Finance Act, 1994. Accordingly, it is observed that service tax is not payable on the TDS paid by the appellant on behalf of the foreign service provider. The issue is no longer ‘res integra’ as the same issue has already been decided by this Tribunal in the Tribunal in the case of Adani Bunkering Pvt. Ltd. Vs. CCE, Ahmedabad – II [2024 (1) TMI 984 - CESTAT AHMEDABAD] wherein the Tribunal has held that TDS deposited to the Income Tax Department in relation to the payment made to the foreign service provider over and above the invoice value of the services, is not liable to service tax. The appellant is not liable to pay service tax on the TDS paid by them on behalf of the foreign service provider. Accordingly, the demand confirmed in the impugned order is not sustainable and merits to be set aside - appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether service tax is payable under the reverse charge mechanism on the amount of tax deducted at source (TDS) / grossed-up foreign currency remittance paid to the Income Tax Department on behalf of a non-resident foreign service provider in excess of the invoice value for services imported into India. 2. Whether the TDS or the grossed-up amount paid to comply with Section 195/195A of the Income Tax Act constitutes 'consideration' or part of the 'value of taxable service' under Section 66A and Section 67(1)(a) of the Finance Act and Rule 7(1) of the Service Tax (Determination of Value) Rules, 2006. 3. Whether earlier tribunal decisions on identical facts are applicable and binding for determining includability of TDS in service tax valuation. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Liability of service tax on TDS/grossed-up foreign remittances under reverse charge Legal framework: Section 66A (reverse charge) and Section 67(1)(a) of the Finance Act, 1994 determine liability/valuation of taxable services; Rule 7(1) of the Service Tax (Determination of Value) Rules, 2006 prescribes that value equals the consideration charged for the service provided. Income Tax Act provisions (Sections 195/195A) require TDS/grossing up when paying non-residents. Precedent treatment: Tribunal decisions (reproduced and relied upon in the judgment) hold that TDS amounts deposited to the Income Tax Department in relation to payments to foreign service providers, which are over and above the invoice value, are not includible in the value of taxable services for service tax purposes. Interpretation and reasoning: The Tribunal reasons that the service tax valuation must be based on amounts billed by the service provider (invoice value). TDS paid by the recipient is a statutory tax obligation under the Income Tax Act to secure collection and does not form part of the contractual consideration received by the foreign service provider. Grossing up to meet income tax obligations reflects the payer's bearing of tax expense and does not alter the agreed consideration for the service. Rule 7(1) and Section 67 read plainly indicate valuation on consideration charged for the service; amounts which are taxes imposed by third-party statutes do not partake the character of consideration. Ratio vs. Obiter: Ratio - Where an Indian recipient pays TDS/grosses up amounts over and above the invoice value solely to comply with the Income Tax Act, such payments are not part of the 'consideration' and therefore not includible in the value of taxable service under Section 67 and Rule 7(1). Obiter - Observations on commercial contract clauses allocating TDS obligation and policy reasons for Section 195 (revenue protection) serve as supporting rationale but are not essential to the holding. Conclusion: Service tax is not payable on the TDS or grossed-up amount paid to the Income Tax Department on behalf of a foreign service provider; demands for service tax on such TDS are unsustainable. Issue 2 - Application of Section 67 and Rule 7(1) to TDS/gross-up payments Legal framework: Section 67(1)(a) requires valuation on consideration for the service; Rule 7(1) confirms valuation equals consideration charged. Income Tax Act obligations are distinct statutory obligations unrelated to consideration. Precedent treatment: Tribunal authorities cited emphasize that contractual allocation of TDS payment to one party does not convert tax into consideration; inclusion in service tax valuation cannot be justified merely by agreement or contractual stipulation. Interpretation and reasoning: The Tribunal applies a textual approach: 'consideration charged' is the invoice amount. The character of TDS as tax (not consideration/income of the non-resident in the sense of contractual price) means it cannot be assimilated into the value of taxable service. Even where parties 'gross up,' that denotes indemnification by the payer and not an increase in the supplier's billed consideration-hence not within Section 67 valuation. The rate-dependent nature of TDS further distinguishes it from voluntarily agreed consideration. Ratio vs. Obiter: Ratio - Rule 7(1)/Section 67 require valuation on billed consideration; statutory taxes (TDS) paid by recipient do not become consideration by virtue of grossing up and thus are excluded. Obiter - Commentary on contract drafting and responsibilities of non-residents without PE adds context but does not form core legal holding. Conclusion: Under Section 67 and Rule 7(1), TDS/gross-up payments are excluded from the value of taxable services and not subject to service tax valuation. Issue 3 - Precedent applicability and consistency Legal framework: Principles of stare decisis and persuasive value of tribunal decisions on identical facts govern reliance on earlier rulings. Precedent treatment: The Tribunal expressly relied on prior tribunal decisions addressing identical facts (including a prior decision in the same appellant's matter) that held TDS/gross-up is not includible in service tax valuation. Those authorities were followed and applied. Interpretation and reasoning: Given identical facts - imported services from non-resident, invoice value established, TDS paid to comply with Income Tax Act, and no deduction from invoice value - the Tribunal found the cited precedents squarely applicable. The prior reasoning that TDS is a statutory tax obligation and not contractual consideration was adopted without distinguishing facts that would require departure. Ratio vs. Obiter: Ratio - Earlier tribunal holdings that TDS is not part of the value of taxable services are followed as binding on the present bench; no contrary or distinguishing factual matrix was shown to justify overruling or distinguishing. Obiter - Extended dicta about policy reasons for Section 195 are supportive but not essential. Conclusion: Prior tribunal decisions on identical facts are applicable and were followed; reliance on those decisions supports setting aside demands for service tax on TDS. Final Conclusion and Disposition The Tribunal holds that service tax is not payable on TDS/grossed-up amounts paid to the Income Tax Department on behalf of foreign service providers; such amounts are not part of the consideration or value of taxable service under Section 66A/Section 67 and Rule 7(1). Following identical prior decisions, the Tribunal sets aside the demand and allows the appeal with consequential relief as per law.