2025 (12) TMI 222 - AT - Service Tax

Revenue sharing with diagnostic partners not taxable as Business Support Services; issue res judicata, service tax demand quashed

NC Jindal Institute of Medical Care & Research Versus Commissioner of Central Excise, Goods & Service Tax, Rohtak

The CESTAT (Chandigarh) allowed the assessee's appeal, holding that revenue sharing arrangements between the assessee and diagnostic service providers do ... Levy of service tax - Business Support services or not - revenue sharing arrangements between the Appellant and the diagnostic service providers (DSPs) - HELD THAT:- The issue involved in the present appeal, relating to revenue sharing arrangements between the Appellant and the DSPs, is no longer res integra as the Tribunal as well as the departmental Appellate Authority, for the earlier and the subsequent periods, have decided the issue in favour the Appellant by holding that revenue sharing arrangements are not subject to service tax under the BSS. Further, it is noted that the department has not filed any appeal against the above-mentioned Orders, therefore, the said Orders have attained finality and therefore, the department cannot take contrary view on the same issue for the same assessee as held in the case of CCE, Pune-II vs. S S Engineers [2023 (7) TMI 717 - SC ORDER]. Further, it is found that this Tribunal in the case of OP Jindal Institute of Cancer & Research [2024 (10) TMI 824 - CESTAT CHANDIGARH], has considered the identical issue along with the agreements entered into by the Appellant with the DSPs and has held that revenue sharing arrangements between the Appellant and the DSPs are not subject to service tax. The impugned order is not sustainable in law and is liable to be set aside - Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the revenue retained by the hospital under revenue-sharing arrangements with diagnostic service providers (DSPs) is liable to service tax as 'Business Support Service' / 'support services of business or commerce'. 1.2 Whether, in view of earlier and subsequent adjudications in favour of the assessee on the same issue which have attained finality, the department could take a contrary stand and confirm service tax under 'Business Support Service'. 1.3 Whether the extended period of limitation was invocable for demanding service tax on amounts retained under the revenue-sharing model. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Taxability of revenue-sharing with DSPs as 'Business Support Service' / support services of business or commerce Legal framework (as discussed) 2.1 The Court referred to the definition of 'support services of business or commerce' under Section 65(104c) read with Section 65(105)(zzzq) of the Finance Act, 1994, including 'infrastructural support services' and the statutory Explanation describing such infrastructural support. The negative list regime post 01.07.2012 and exemption for 'healthcare services' (including under Notification No. 30/2011-ST) were also noticed in the earlier decision reproduced and followed. 2.2 Circular No. 109/03/2009-ST dated 23.02.2009 was relied upon, which clarifies that where parties operate on a principal-to-principal revenue-sharing basis, such arrangements are not to be treated as provision of taxable service between them. Interpretation and reasoning 2.3 The Court noted that the agreements between the hospital and DSPs are on a principal-to-principal basis and are in the nature of pure revenue-sharing contracts. The clauses reproduced in the earlier decision show: (a) revenue from tests conducted is collected primarily by the hospital; (b) 'net revenue' from pathology/diagnostic tests is shared between hospital and DSPs in agreed ratios; (c) there is no stipulation of any 'service charges' being payable by DSPs to the hospital; and (d) sharing is only of the gross revenue from patients. 2.4 It was observed that diagnostic services are provided to patients within the framework of the hospital's healthcare activity; bills are raised by the hospital on patients; diagnostic reports are issued in the hospital's name; all such receipts are accounted as hospital revenue; and the hospital thereafter pays DSPs their agreed share. This factual pattern shows that, if anything, services are rendered by DSPs to the hospital, and not by the hospital to DSPs. 2.5 The infrastructural facilities (space, electricity, water, basic amenities) made available to DSPs were held to be enabling facilities necessary for DSPs to perform diagnostic services as part of the hospital's overall healthcare delivery, and not 'support services of business or commerce' rendered to DSPs for consideration as understood in Section 65(104c) / Section 65(105)(zzzq). 2.6 It was emphasized that the arrangement constitutes a joint venture/business model for providing healthcare services to patients, with revenue flow coming from patients to the hospital, and then being distributed as per the agreed sharing formula. In such a revenue-sharing joint arrangement, there is no separate, identifiable consideration for any taxable 'support service' from the hospital to DSPs. 2.7 Relying on the above statutory provisions, the CBDT circular and multiple judicial precedents on revenue-sharing and healthcare/joint-venture arrangements, as reproduced and followed from the earlier Tribunal order, the Court affirmed that such revenue-sharing models do not attract service tax under 'Business Support Service'. 2.8 The Court further endorsed the earlier finding that the services in question, if any, are in the nature of 'healthcare services' provided by the hospital, with diagnostic services being an integral component thereof. Healthcare services were exempted from service tax from 25.04.2011 and continued to be non-taxable even in the negative list regime. Conclusions 2.9 The hospital does not provide 'Business Support Service' / 'support services of business or commerce' to DSPs under the revenue-sharing agreements; there is no taxable service from hospital to DSPs. 2.10 The amounts retained by the hospital out of receipts from patients, under such revenue-sharing arrangements, are not exigible to service tax under 'Business Support Service' for any part of the period in dispute, including the negative list period. 2.11 The demand of service tax, interest and penalties confirmed under the impugned order on this basis is unsustainable and liable to be set aside. Issue 2 - Effect of earlier and subsequent decisions in assessee's favour and prohibition on contrary stand by department Interpretation and reasoning 2.12 The Court recorded that, for earlier and subsequent periods, both the Tribunal and the departmental appellate authority had already decided the same issue-taxability of the identical revenue-sharing arrangement between the same assessee and DSPs-in favour of the assessee. 2.13 It was noted that the department had not filed any appeal against those orders, which have therefore attained finality. 2.14 Relying on the principle that the department cannot take inconsistent or contrary stands on the same issue for the same assessee, as recognised in binding precedent, the Court held that the revenue was not justified in confirming service tax on an identical factual and legal matrix for the present overlapping period. Conclusions 2.15 The prior and subsequent decisions in favour of the assessee on the same issue, having attained finality, bind the department; a contrary view in the impugned order is impermissible. 2.16 On this ground also, the demand under 'Business Support Service' cannot be sustained. Issue 3 - Invocation of extended period of limitation Legal framework (as discussed in followed decision) 2.17 The earlier Tribunal decision, reproduced and adopted, examined the requirements for invocation of the extended period, namely suppression of facts or willful misstatement with intent to evade tax. Interpretation and reasoning 2.18 It was found that all earnings from the revenue-sharing model were duly reflected in the hospital's balance sheet, a public document, and no material suppression or deliberate concealment was established by the department. 2.19 The assessee had proceeded under a bona fide belief, supported by evolving jurisprudence and statutory exemptions, that healthcare/revenue-sharing receipts of this nature were not liable to service tax. The issue was characterised as one of interpretation of complex legal provisions, an industry-wide controversy being settled only recently. 2.20 On those facts, the extended period of limitation was held in the earlier decision to be not invocable, and the substantial portion of the demand for the earlier period was held time-barred. The present case, resting on the same factual and legal foundation, was disposed of by following that reasoning. Conclusions 2.21 Preconditions for invoking the extended period of limitation were not satisfied; suppression or intent to evade was not established. 2.22 In any event, since the underlying demand itself is held to be not sustainable on merits, the consequential demands of interest and penalty also do not survive. 2.23 The impugned order is set aside and the appeal is allowed with consequential relief as per law.