2025 (12) TMI 223 - AT - Service Tax

Service tax demand on reimbursed electricity charges quashed; Rule 5 invalid, extended limitation period inapplicable absent suppression

Ubico Network Private Limited Versus Commissioner of Service Tax, Delhi-IV, Haryana

CESTAT allowed the appeal, setting aside service tax demand on reimbursement of electricity charges recovered by the Appellant from customers. It held ... Levy of service tax on the reimbursement of electricity charges received by the Appellant from their customers - non-fulfilment of condition under Rule 5 of the Service Tax (Determination of Value) Rules, 2006 - extended period of limitation - HELD THAT:- It is found that the department in the show cause notices has mentioned that the Appellant have not fulfilled the condition under Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and therefore, the Appellant are not entitled for the benefit as a pure agent to exclude the reimbursement of expenditure. Further, it is found that this issue is no more res integra and has been settled by the Hon’ble Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt Ltd vs. UOI [2012 (12) TMI 150 - DELHI HIGH COURT] wherein Rule 5 of the Service Tax (Determination of Value) Rules, 2006 was struck down and it was held that reimbursable expenses are not subject to service tax. Further, it is found that the learned Commissioner did not follow the said decision of Hon’ble Delhi High Court only on the ground that against the said decision of High Court, the appeal of the Revenue was pending before the Hon’ble Supreme Court at that time. In view of the fact that the law on the issue of reimbursement of electricity charges, is settled in favour of the Assessees, therefore, the demand of service tax on reimbursement of electricity charges is not sustainable in law. Invocation of extended period of limitation in first show cause notice - HELD THAT:- The show cause notice is itself barred by limitation as the extended period cannot be invoked when the issue was raised on the basis of the audit conducted by the department as held in the case of Sunshine Steel Industries [2023 (1) TMI 638 - CESTAT NEW DELHI]. Further, it is also found that the department has not been able to establish on record that there was a suppression of facts on part of the Appellant with intent to evade payment of service tax. The impugned order is not sustainable in law - Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether service tax is leviable on reimbursement of electricity charges recovered by a service provider from its customers, particularly in light of Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and the concept of 'pure agent'. 1.2 Whether electricity constitutes 'goods' and, therefore, the supply/reimbursement of electricity charges is outside the ambit of service tax. 1.3 Whether invocation of the extended period of limitation in the first show cause notice, issued on the basis of an audit, was legally sustainable. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Levy of service tax on reimbursement of electricity charges and applicability of Rule 5 of the Service Tax (Determination of Value) Rules, 2006 Legal framework (as discussed): The show cause notices alleged that the assessee failed to fulfil conditions under Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and, consequently, could not claim exclusion of reimbursed expenditure as a 'pure agent'. The Court examined the binding effect of the decisions in Intercontinental Consultants & Technocrats Pvt. Ltd., wherein Rule 5 was struck down and reimbursable expenses were held not includible in the taxable value. Interpretation and reasoning: The Court noted that the sole dispute was whether service tax could be levied on reimbursement of electricity charges. It recorded that the department's case was premised on non-fulfilment of Rule 5 conditions and denial of 'pure agent' benefit. Referring to the judgment of the High Court in Intercontinental Consultants & Technocrats Pvt. Ltd., as affirmed by the Supreme Court, the Court held that reimbursable expenses are not subject to service tax and that the valuation of taxable service cannot exceed the consideration paid as quid pro quo for the service. It observed that the Commissioner had declined to follow the High Court decision only because an appeal was then pending before the Supreme Court, but that appeal now stood dismissed. The Court further relied on multiple Tribunal decisions holding that reimbursement of electricity charges is not taxable and cited the reasoning in ICC Reality (India) Pvt. Ltd. that electricity charges collected from tenants cannot form part of the assessable value for renting of immovable property. Conclusions: The Court held that, in view of the settled law post-Intercontinental Consultants & Technocrats Pvt. Ltd. and consistent Tribunal precedents, the demand of service tax on reimbursement of electricity charges is not sustainable in law. Issue 2: Characterisation of electricity as 'goods' and its taxability under service tax Legal framework (as discussed): The Court referred to prior judicial pronouncements which recognised electricity as 'goods' covered under tariff legislation, and to the reasoning in ICC Reality (India) Pvt. Ltd. that electricity falls under the Central Excise Tariff and is also treated as goods under value added tax legislation. Interpretation and reasoning: Adopting the reasoning in ICC Reality (India) Pvt. Ltd. and relying on the decision recognising electricity as goods, the Court accepted that electricity is specifically classified as goods under the Central Excise Tariff and is treated as such under State VAT law. Therefore, the supply of electricity to tenants/customers amounts to a sale of goods and not a provision of service. Conclusions: The Court held that electricity is 'goods' and is not subject to service tax; levy of service tax on supply or reimbursement of electricity charges is impermissible. Issue 3: Validity of invocation of the extended period of limitation in the first show cause notice Legal framework (as discussed): The first show cause notice invoked the extended period of limitation to demand tax on reimbursements for 2009-10 to 2012-13. The Court considered the settled position that extended limitation cannot be invoked in the absence of wilful suppression with intent to evade tax, particularly where the case arises out of departmental audit. Interpretation and reasoning: The Court found that the demand was raised on the basis of an audit conducted by the department and that all relevant records had been produced, with the assessee regularly filing ST-3 returns. It noted that the department had not established suppression of facts with intent to evade payment of service tax. Relying on precedent that extended limitation is not available when the issue is detected during audit and there is no such suppression, the Court held that the extended period was wrongly invoked. Conclusions: The Court held that the first show cause notice was barred by limitation and that invocation of the extended period was unsustainable in law. Overall disposition: On the combined findings that (i) reimbursement of electricity charges is not liable to service tax, (ii) electricity is goods not subject to service tax, and (iii) the first show cause notice was time-barred, the Court set aside the impugned order in entirety and allowed the appeal with consequential relief.