2011 (9) TMI 811 - AT - Service Tax

Stock broker / sub broker - stock broker service or business auxiliary service - During the period of dispute, as per the SEBI guidelines, even though a transaction of sale or purchase of a security was through a sub-broker, it was only the main broker who could issue the transaction note and could issue the bill to the client for the total amount of brokerage - with effect from April 2005 as per the new SEBI guidelines, the bills for the brokerage could be raised only by the main broker and the sub-broker would get only the commission, which was part of the gross amount of brokerage - The appellant, being a sub-broker are obviously covered by the definition of stock broker and even as sub-broker, their activity in connection with sale or purchase of securities listed on stock exchange for their clients has to be treated as service provided by stock broker in connection with sale or purchase of securities covered by Section 65(105)(a) - Larger Bench of the Tribunal in the case of Vijay Sharma & Co. v. C.C.E., Chandigarh reported in (2010 -TMI - 78818 - CESTAT, NEW DELHI) - Decided in favor of the assessee by way of remand to Commissioner for de novo decision

Summary

Issues:
Interpretation of SEBI guidelines for brokerage billing and service tax liability for sub-brokers.

Analysis:
The case involved a dispute regarding the service tax liability of a sub-broker registered with SEBI for the period from April 2005 to June 2006. The dispute arose due to changes in SEBI guidelines, where only the main broker could issue bills for brokerage, and sub-brokers received commissions. The department alleged that the sub-broker's activity of bringing clients to main brokers constituted Business Auxiliary Service taxable under specific sections of the Finance Act, 1994. A show cause notice was issued, leading to a demand for service tax, interest, and penalties. The Assistant Commissioner confirmed the demand in an order-in-original, which was upheld by the Commissioner (Appeals), prompting the appeal.

During the hearing, the appellant argued that as a sub-broker, their activity was covered under the definition of a broker, and the service provided was in connection with the sale or purchase of securities, not Business Auxiliary Service. They cited a Tribunal judgment that supported their position. The department, represented by the Senior Departmental Representative, defended the impugned order, asserting that the appellant's activity amounted to marketing broker services, thus subject to service tax.

The Tribunal carefully analyzed the submissions and relevant provisions. It noted that the appellant, as a sub-broker, fell within the definition of a stock broker under the Finance Act, 1994. Therefore, their services in connection with securities transactions were akin to those provided by a stock broker, not Business Auxiliary Service. The Tribunal emphasized that the main broker was responsible for issuing transaction notes and receiving commissions, part of which was shared with the sub-broker. The Tribunal referred to a previous judgment that had not been considered in the impugned order, leading to the conclusion that the order was not sustainable. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision in light of the previous judgment. The appeal and stay application were disposed of accordingly.