AI Drafter 
TaxTMI 
TaxTMI 
2022 (12) TMI 975
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....enue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record, we find that in the light of decision of this Tribunal vide order No. A/11854-11858/2018 dated 09.04.2018 wherein the present appellant is also one of the appellants, has decided the same issue in their favour. The said decision of the Tribunal is reproduced below:- "5. After hearing both the sides and examining the record, we find that in these appeals the service tax has been demanded on various charges/commissions/income, which are dealt under the following heads:- (A) Service Tax on CTCL charges and Depository Charges :- We find that these charges relate to payments made by the appellant for the CTCL computer program. Such a program provides a single point trading access to equity, commodity and currency derivatives markets. The NSE (National Stock Exchange) charges fees for giving this facility to the brokers. The broker then shares this service with the customers and charges the customers to recover the fees paid to NSE by way of reimbursements. The Depository/Demat Charges are levied by the Depository under Depo....
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....ower to tax. The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. The judicial opinion of binding authority flowing from several pronouncements of the Hon'ble Supreme Court has settled these principles : (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. 12.3 There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the Legislature's failure to express itself clearly. It is well settled that power to tax cannot be in....
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....ed by stock broker. It was submission of the learned Counsel Shri Mittal that insofar as stock brokers are concerned, brokerage or commission charged by them only from value of taxable service and that was intended to be taxed by the budget of 1994-95. This was the proposal in Part B of the Budget presented to the Parliament on 28th February, 1994. Reading of the legislative intent from the budget speech and the express legislation in Section 67 of the Act does not leave any room for implication of ambiguity. Therefore, express grant of the statute no way leaves scope for implication to make the statutory grant ineffective. Law being well settled that there is no intendment in taxation and the State has to discharge its burden of proof to bring the subject into tax, there is no scope to bring any other element of receipt other than brokerage or commission to the scope of assessable value in respect of service provided by stock brokers. 14. Normally value is derived from the price and value is the function of the price. This is conceptual meaning of value. Section 67 is the sole repository of law governing value of taxable service provided by the stock broker. Any charge on....
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.... the service of stock broking provided by a stock broker to investors. Therefore, aforesaid charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service. On merit, all the appellants succeed on the fundamental principles of taxation. Therefore, other contentions on merit made in respective appeals are not considered in this order." 10. Similar view has been expressed recently by the Tribunal in M/s Consortium Securities Pvt Ltd.s case (supra). We do not find any reason to deviate from the ratio laid down in the aforesaid judgments of this Tribunal. We are also of the view that the allegation of the department that the demat charges collected by the brokers are banking and financial service, hence taxable, also devoid of merit in as much such charges are collected by the Appellant and paid to the depository participants viz. CDSL/NSDL who are authorised to levy such charges under the Depositories Act, 1996. Thus, in view of the aforesaid precedent, we do not find merit in impugned orders and accordingly set aside. The appeals are allowed with consequential relief, if any, as per law." ....
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....urt stands appealed against before the Hon'ble Supreme Court. Fairly, he concedes that he is not aware that any order has been passed by Hon'ble Supreme Court setting aside the judgment or any stay has been granted. 5. Ld. Advocate submits that though appeal has been admitted no order has been passed by the Hon'ble Supreme Court so far. Ld. Advocate for the respondent also relies on the decision in the case of Commissioner of S.T. Delhi v. P.N. Vijay Financial Services Pvt. Ltd. reported in 2008 (12) S.T.R. 628 (Tri.-Del.) holding similar view. 6. We find that the Commissioner has dropped the proceedings on the ground that the Circular dated 5-11-2003 of the Board which was the basis for issue of Show Cause Notice stands set aside by the Hon'ble High Court of Andhra Pradesh. The said judgment of the Hon'ble High Court has not been set aside or stayed. Under these circumstances, we do not find any infirmity in the order of the Commissioner." Same view has been taken by this Tribunal in the case of P.N. Vijay Financial Services Pvt Ltd. - 2008 (12) STR 628. In view of the above, the demand of service tax on account of income from distribution of mutual fund....
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....the case of Canara Bank and Union Bank of India cases (cited supra) has held that the sale of RBI bonds would amount to statutory/sovereign function and cannot be subjected to any tax liability. 4.2 Following the ratio of these decisions and the clarification issued by the C.B.E. & C. as well as by the RBI, we hold that the impugned demands are not sustainable. Accordingly, the same is set aside. The appellant is also entitled to consequential relief, if any, in accordance with the law. Appeal is disposed of in the above terms." In view of the above, we hold that the demand of service tax on commission received from sale of RBI bonds is not liable to service tax. 6. As the demands in appeal nos. listed at Sr. No. 1, 2, 4 & 5 have been set aside, accordingly the penalties imposed on the basis of these demands do not survive. 7. We note that appeal nos. ST/166/2010 and ST/494/2011 are both in relation to the show cause notice bearing F.N. ST29/O7A/SCN/Anagram/JC/08 dt. 08.03.2008, which was adjudicated by Additional Commissioner vide Order-in-Order No. STC/5/ADC/2009 dt. 21.07.2009. In the said Original-in-Order dt. 21.07.2009, demand on account of....