2011 (5) TMI 615 - AT - Service Tax

SEBI turnover charges as well as BSE transaction charges - demand service tax on the transaction charges recovered from brokers and sub brokers under the category of stock broker service - Held that - The appellant was already registered under stock broker service category and has been paying service tax on brokerage and filing service tax returns. Therefore the extended period of limitation cannot be invoked. As decided in FIRST SECURITIES PVT. LTD. Versus COMMR. OF SERVICE TAX, BANGALORE 2007 (6) TMI 33 - CESTAT, BANGALORE handling charges collected from investors and amounts collected towards transaction charges cannot be equated to brokerage or commission for purchase of securities & in the case of Sriram Insight Share Brokers Ltd. Vs. CST, Kolkata (2008 (6) TMI 185 - CESTAT, KOLKATA) the transaction charges are includable in the assessable value. The appellant has made out a strong case in their favour. Stay granted and waiver of pre-deposit of the service tax, interest and penalty.

Summary

Issues:
1. Liability of stock broker to pay service tax on transaction charges
2. Contention regarding time bar
3. Integration of NSE/BSE charges and SEBI turnover fees into Stock Broker Service
4. Interpretation of previous Tribunal decisions on transaction charges
5. Granting stay and waiving pre-deposit of service tax, interest, and penalty

Issue 1: Liability of stock broker to pay service tax on transaction charges
The petition was filed against an Order-in-Original confirming a demand for service tax on BSC transaction charges. The Commissioner held that the liability to pay SEBI turnover charges and BSE transaction charges lay with the appellants, forming part of the service value provided by them. The appellants argued that since the exchange rendered taxable stock exchange services, they were not liable to include transaction charges in the taxable value of stock broker service. The definition of "Stock Brokers' Service" under the Act clarified that stock brokers were required to pay service tax on securities purchases, making transaction charges paid by the appellants to the exchange, and claimed as reimbursement from clients, non-taxable.

Issue 2: Contention regarding time bar
The appellants contended that the time bar did not apply as they separately showed transaction charges in bills where brokerage was also displayed, with service tax already paid on brokerage charges. They argued that past show cause notices on the same issue indicated authorities were aware of the matter. Being registered under the stock broker service category and consistently paying service tax on brokerage, they claimed the extended limitation period could not be invoked.

Issue 3: Integration of NSE/BSE charges and SEBI turnover fees into Stock Broker Service
The Revenue argued that service tax on NSE/BSE charges and SEBI turnover fees formed an integral part of Stock Broker Service and Banking & other Financial Services, opposing the appellants' position on the matter.

Issue 4: Interpretation of previous Tribunal decisions on transaction charges
The Tribunal referred to decisions by the Bangalore and Kolkata Benches, highlighting differing views on the inclusion of transaction charges in assessable value. The Bangalore Bench held that handling charges and transaction charges were distinct from brokerage or commission, while the Kolkata Bench indicated that transaction charges could be included in the assessable value.

Issue 5: Granting stay and waiving pre-deposit of service tax, interest, and penalty
After analyzing the case facts without delving into the merits, the Tribunal found in favor of the appellant, granting a stay and waiving the pre-deposit of service tax, interest, and penalty. The decision was based on the strong case presented by the appellant.

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