TaxTMI 
TaxTMI 
2024 (6) TMI 444
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....d for the subsequent period from April 2016 to June 2017 to the extent the order confirms the demand against the appellant and imposes penalty. 2. Service Tax Appeal No. 50082 of 2022 has been filed by Sanjay Bhasin against that part of the order dated 28.09.2021 passed by the Additional Director that imposes penalty upon the said appellant. 3. Service Tax Appeal No. 50083 of 2022 has been filed by Pankaj Jain against that part of the order dated 28.09.2021 passed by the Additional Director that imposes penalty upon the said appellant. 4. The appellant owns an online platform 'GOIBIBO.Com'. The appellant claims to be providing the following service to the customers: (i) Booking of airline tickets (both in online and offline mode for travel within India as well as outside India); (ii) Tour operator relating to package tours including travel and accommodation in hotels, inns, houseboat and cruise (both in online and offline mode for stay within India as well as outside India); (iii) Hotel room booking for customers (both in online and offline mode for stay within India as well as outside India); (iv) Booking of cabs; and (v) Booki....
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....67,09,835 84,42,89,445 1,10,11,837 2,20,55,700 119,75,38,859 26.06.2019 April 2016 to June 2017 360,96,87,142 345,83,34,685 85,82,700 8,07,38,383 370,01,04,827 Total 517,63,96,977 430,26,24,130 1,95,94,537 10,27,94,083 489,76,43,686 7. The following chart would show the consolidated demand proposed, the demand confirmed, and the demand dropped under the impugned order: Demand Proposed in show cause notice Confirmed by the order Dropped by the order Demand under section 73 517,63,96,977 256,82,50,345 260,81,46,632 Demand under section 73A 442,50,12,750 253,66,91,219 188,83,21,531 Total Demand 960,14,09,727 510,49,41,564 449,64,68,163 8. Shri V. Lakshmikumaran, learned counsel for the appellant assisted by Ms. Shagun Arora and Shri Kunal Aggarwal and Shri Mihir Ranjan, learned special counsel for the department have stated that the aforesaid issues that arise for consideration in this appeal were earlier also considered and decided in favour of the appellant by this Tribunal in M/s. Make My Trip (India) Private Limited vs. Additional Director General, Directorate....
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....tomer selects the hotel and fills the booking form. iii. Upon making the payment, a service tax invoice is generated. Process of booking of hotel accommodation: i. Customer visits the website or mobile application of the appellant and fills details such as travel dates, place of visit, ranking of hotel; ii. Options of hotels are shortlisted by appellant. iii. The Customer selects the hotel and fills the booking form. Booking voucher is generated by the appellant for the customer. Documents Issued i. Service tax invoice ii. Hotel Confirmation Voucher iii. Hotelier Voucher i. Booking Voucher ii. Hotel Confirmation Voucher iii. Hotelier Voucher iv. Hotel Payment Voucher Agreements Executed i. Privilege Partnership Agreement ii. Agreement for allocation of specific number of rooms iii. Commission Model agreement i. Accommodation Alliance Agreement ii. Clip Wrap Agreement / Your Accommodation Agreement. Service Tax Treatment Make My Trip paid service tax under the category of 'tour operator service' after avail....
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....f the hotels. The appellant and the hotels were working on principal to principal basis. The hotels treat the net income remitted by the appellant as their service value. There is no scope for a commission agent to suffer losses. Since the appellant has suffered losses in some cases, it goes to prove that the appellant is not an agent but they are renting the rooms to the customers. The appellant undertakes the primary responsibility of redressal of grievances of customers. The customers have to approach the appellant for cancellation of booking. The appellant is liable to pay service tax on the amount collected from the customers for renting of hotel rooms under section 66B of the Finance Act read with section 66E(a) of the Finance Act which provides for the declared service of renting of immovable property service. No mention. The appellant has not correctly discharged the service tax recovered by it from the customers. Further, the appellant has also wrongly collected service tax in respect of hotels having tariff less than Rs 1000/- per day and hotels situated in Jammu and Kashmir, which is recoverable under section 73A of the Finance Act. Finding....
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....llant purchases the room at pre-negotiated prices and sells the same to its customers with a mark-up or discount. This shows that the relationship between the appellant and the hotels is on principal to principal basis. That the appellant does not satisfy the main conditions of being an intermediary between hotel and the customer as it is neither acting as an agent of the hotel and nor facilitating the provision of any service. Further, the hotel is providing a service to the appellant by honoring the appellant's bookings. The appellant is not providing any service to the hotel. iii. That a commission agent would not incur losses while acting on behalf of the principal. Hence, the appellant is not a commission agent. iv. That the customers have to approach the appellant in case of any deficiency in service or any other complaints relating to the accommodation, and not the hotel. Thereafter, the hotels indemnify the appellant against all the losses, damages and any other claims arising out of injuries suffered by the customers of the appellant. Since the customers have to approach the appellant for redressal of their grievances, there is a privity between appellant and cu....