2011 (9) TMI 772 - AT - Service Tax

Applicability of service tax on TDS u/s 195A - According to the Appellant, the amount of income tax paid by operation of law is not liable to service tax since it does not form part of the gross amount charged by the service provider - held that - there is no specific exclusion in the Finance Act, 1994 to exclude the income tax paid in respect of the amount paid for the services received from abroad - Merely because no such exclusion has been provided in respect of statutorily deducted amount of income tax, it cannot be said that the appellants have not made out a case for waiver of the pre-deposit in this regard - the appellants have paid an amount of Rs. 1,02,149/- and Rs. 21,749/- and the same have been appropriated, we are of the view that balance of convenience lies in waiving the requirement of pre-deposit of the balance amount during the pendency of the appeal.

Summary

Issues:
1. Liability of service tax on contracts involving non-resident service providers.
2. Tax treatment of expenses incurred directly by the appellant for non-resident service providers.
3. Service tax liability on services received from clearing and forwarding agents.
4. Adjudication of a Show Cause Notice demanding payment under various heads.
5. Confirmation of demand, imposition of penalty, and appeal dismissal by lower authorities.
6. Interpretation of Finance Act, 1994 regarding exclusion of income tax and service tax amounts.
7. Waiver of pre-deposit requirement during the pendency of the appeal.

Analysis:
1. The appellant avails services from non-resident providers and pays service tax as a recipient. Two categories of contracts are involved: TDS Situation 1 where the service provider bears Indian direct taxes, and TDS Situation 2 where the appellant bears these taxes. The appellant argues that income tax paid by operation of law should not be subject to service tax as it does not form part of the 'gross amount charged' by the service provider.

2. The appellant also incurs expenses directly for non-resident service providers, such as air tickets and accommodation. While service tax is paid on expenses claimed from the provider, no tax is paid under the 'reverse charge' mechanism for expenses incurred directly. This raises questions on the tax treatment of such expenses.

3. The appellant engages a clearing and forwarding agent who collects service tax for various services, including goods transport. A Show Cause Notice demands payment for non-inclusion of TDS amount, expenses for non-resident service providers, and non-payment of service tax to the agent. The lower authorities confirmed the demand, imposed penalties, and dismissed the appeal, leading to the current appeal before the Tribunal.

4. The Tribunal notes that the Finance Act, 1994 does not explicitly exclude income tax paid for services received from abroad. However, it opines that income tax deducted at source may not be part of the 'gross amount charged.' The Act excludes service tax amounts when charged, but no such exclusion is provided for statutorily deducted income tax, warranting consideration for waiver of pre-deposit.

5. Regarding expenses for airfare, accommodation, and transport services, the appellant argues that service tax has already been paid to the providers. The Tribunal observes that raising a second demand for the same services, where taxes have been paid and collected, may not be justified.

6. Considering the payments already made by the appellant and the balance of convenience, the Tribunal waives the requirement of pre-deposit for the remaining amount during the appeal's pendency. This decision is based on the interpretation of the Finance Act, 1994 and the circumstances of the case.

This judgment addresses complex issues related to service tax liability, tax treatment of expenses, and interpretation of statutory provisions under the Finance Act, 1994. It provides clarity on the exclusion of income tax from the 'gross amount charged' and the appropriateness of raising multiple demands for the same services. The decision to waive the pre-deposit requirement demonstrates a balanced approach considering the appellant's payments and the circumstances of the case.