service tax liabilities when expenses recovered by sister concern against wages & salaries of staff

[P Ovhal]

Dear Experts,
Service Tax liable when one company had reimburse Staff salary & wages expenses from its sister concern. i.e. Employees/Staffs on the pay roll of one company also happens to look after the work of sister concern of that company which is separately registered with CE & ST Dept. Now both companies are merged.
Can this company need to pay Service Tax of Reimbursed Amount as provided Services to its sister concern.
Please suggest any Judgment /notification.

Rregards

PRO

[Rajagopalan Ranganathan]

Sir,

      Please go through the order of CESTAT in the case of M/s. Tata Steel Ltd. (Growth Shop) Versus Commissioner of Central Excise & Service Tax, Jamshedpur[2014 (5) TMI 464 - CESTAT KOLKATA] which is given hereunder: -

Demand of service tax - Separate entity or single entity - ‘commissioning and installation services’ and ‘maintenance and repair services’ - whether M/s. Tata Steel Ltd.(Growth Shop) and M/s. Tata Steel Ltd. are different legal entities or one and the same entity, whereby, the services rendered by M/s. Tata Steel Ltd.(Growth Shop) to M/s.Tata Steel Ltd.(Steel Division) would come under the scope of Service Tax - Held that:- Prima facie, we find that M/s.Tata Steel Ltd.(Growth Shop) has been appointed to provide services by floating tenders by M/s.Tata Steel Ltd. through M/s.M.N.Dastur & Co.. From the argument of the Ld.Advocate, we find that M/s.Dastur & Co. has only been appointed for the purpose of inviting tenders and selection of bidders. Also, from the submission of the Ld.Advocate we find that M/s.Tata Steel Ltd.(Growth Shop) and M/s.Tata Steel Ltd.(Steel Works) are not separately, incorporated as companies under the Companies Act, 1956. He submits that even though separate PAN based registrations were taken, but the entire liability relating to Income Tax and prescribed Income Tax Returns are filed from their Head Office on behalf of the units against a single PAN number and prima facie, we find that the Applicant and M/s.Tata Steel Ltd. (Steel Works) are not two separate legal entities, but units of Tata Steel divisions. In absence of any contrary judgement placed by the Revenue to the decisions of M/s.Indian Oil Corporation Ltd. [2007 (5) TMI 135 - CESTAT, KOLKATA] and Precot Mills Ltd. (2006 (2) TMI 25 - Appellate Tribunal, Bangalore), prima facie, we are of the view that Service Tax may not be payable for rendering service by one division to another division of the same legal entity. In the result, the Applicant could able to make out a prima facie case, for total waiver of pre-deposit of dues adjudged - Stay granted.

No. - Appeal No.S.T. 372/11

Order No. - ORDER NO.SO/75231/2014

Dated - February 20, 2014

Dr. D.M. Misra and Dr. I.P. Lal, JJ. For the Appellant : Dr.Samir Chakraborty, Advocate For the Respondent : Shri Anirudha Roy, Supdt.(A.R.) JUDGMENT Per Dr. D.M. Misra. 1. This is an Application seeking waiver of pre-deposit of Service Tax of Rs.1.74 Crores and penalty of Rs.2.00 Crores imposed under Section 78 and penalty of Rs. 5,000/- under Section 77 of the Finance Act, 1994. 2. Dr. Samir Chakraborty, Ld.Sr.Advocate for the Applicant submits that during the relevant period i.e. April, 2005 to March, 2010, the Applicant, namely, M/s. Tata Steel Ltd. (Growth Shop) has renedered services to M/s.Tata Steel Ltd.(Steel Works), under the category of ‘commissioning and installation services’ and ‘maintenance and repair services’. It is his submission that M/s. Tata Steel Ltd.(Growth Shop) had been also rendering services, under the said category, to other service receivers, on which Service Tax has been discharged, a fact not in dispute. He submits that since M/s.Tata Steel Ltd.(Growth Shop) and M/s.Tata Steel Ltd. though two units but are one and the same legal entity, therefore, no Service Tax is payable as services rendered to self cannot be subjected to Service Tax. In support he has referred to the judgement of this Tribunal in the case of M/s.Indian Oil Corporation Ltd. vs. CCE, Patna  2007 (8) S.T.R. 527 (Tri.-Kolkata) and Precot Mills Ltd. vs. Commissioner of Central Excise, Tirupati  2006 (2) S.T.R. 495 (Tri.-Bang.). 3. Per contra, the Ld. A.R. for the Revenue submits that the Applicant M/s.Tata Steel Ltd.(Growth Shop) has been providing such services, on the basis of tenders floated by M/s.Dastur & Co., appointed by M/s.Tata Steel Ltd.(Steel Works), the service receiver. He submits that on qualifying the bid, the work order has been issued by M/s.Tata Steel Ltd.(Steel Works) and there is an agreement between M/s. Tata Steel Ltd.(Steel Works) and M/s. Tata Steel Ltd.(Growth Shop) for rendering such service. It is his submission that unless M/s. Tata Steel Ltd. and M/s.Tata Steel Ltd.(Growth Shop) are separate legal entities, there would not have been any reason for entering into an agreement and also putting an arbitration clause. He submits that these two units are having separate PAN based Service Tax as well as Central Excise Registration number. It is his contention that therefore M/s.Tata Steel Ltd.(Growth Shop) and M/s.Tata Steel Ltd.(Steel Works) be treated as separate legal entity and hence the judgements cited by the Ld.Advocate is not applicable. 4. In his rejoinder Dr.Samir Chakraborty, Ld.Sr.Advocate has categorically submitted that M/s.Tata Steel Ltd.(Growth Shop) is an unit of the M/s.Tata Steel Ltd. (Steel Division) and a trial balance is prepared for measurement of its performance. It is his submission that all income tax compliance has been made from their Head Office at Mumbai, for all the units, spread all over India. The separate trial balance is prepared to assess the profit/loss of each individual unit and their performance. It is his submission that merely taking separate registration under various tax laws, would not make them separate legal entity. In support he has referred to the decision of this Tribunal in their own case reported as Tata Iron & Steel Co.Ltd. vs. CCE, Jamshedpur - 2008 (228) E.L.T. 124(Tri.-Kolkata). 5. Heard both sides and perused the record. The principal issue in the present case involved is that whether M/s. Tata Steel Ltd.(Growth Shop) and M/s. Tata Steel Ltd. are different legal entities or one and the same entity, whereby, the services rendered by M/s. Tata Steel Ltd.(Growth Shop) to M/s.Tata Steel Ltd.(Steel Division) would come under the scope of Service Tax. Prima facie, we find that M/s.Tata Steel Ltd.(Growth Shop) has been appointed to provide services by floating tenders by M/s.Tata Steel Ltd. through M/s.M.N.Dastur & Co.. From the argument of the Ld.Advocate, we find that M/s.Dastur & Co. has only been appointed for the purpose of inviting tenders and selection of bidders. Also, from the submission of the Ld.Advocate we find that M/s.Tata Steel Ltd.(Growth Shop) and M/s.Tata Steel Ltd.(Steel Works) are not separately, incorporated as companies under the Companies Act, 1956. He submits that even though separate PAN based registrations were taken, but the entire liability relating to Income Tax and prescribed Income Tax Returns are filed from their Head Office on behalf of the units against a single PAN number and prima facie, we find that the Applicant and M/s.Tata Steel Ltd. (Steel Works) are not two separate legal entities, but units of Tata Steel divisions. In absence of any contrary judgement placed by the Revenue to the decisions of M/s.Indian Oil Corporation Ltd. and Precot Mills Ltd. (supra), prima facie, we are of the view that Service Tax may not be payable for rendering service by one division to another division of the same legal entity. In the result, the Applicant could able to make out a prima facie case, for total waiver of pre-deposit of dues adjudged. Accordingly all dues adjudged is waived and its recovery stayed during pendency of the Appeal. Stay Petition allowed. (Pronounced and dictated in the open court.)

   If the two units are belong to the same management, then no service tax is payable.

[Madhukar N Hiregange]

The expenses is actually shared are not liable for service tax. Further the squashing of the valuation rules in regard to reimbursement may also be examined. 

However if margins are added up then it could be construed to be a service.

[YAGAY andSUN]

Revenue sharing or Expense sharing does not attract any service tax. If there is any markup then it would attract the service tax.Team YAGAY & SUN(Management & Indirect Tax Consultants)

AI Summary

Separate legal entity principle: intra group reimbursements are non taxable unless margins convert them into taxable services. Whether reimbursements of staff salary and wage expenses between related entities attract service tax depends on whether the payer and payee are distinct legal entities or units of the same entity. Pure cost sharing or pass through reimbursements without markup are ordinarily non taxable, while any added margin may be taxable and must be assessed under valuation rules. The inquiry emphasizes corporate form and functional indicia (incorporation, PAN usage, management unity, tendering and agreements) over mere separate registrations.