2012 (7) TMI 538 - HC - Service Tax

Permissibility of collection of service tax from the service receiver in case of foreign based service providers before 18.04.2006 - Held that - It is only after enactment of Section 66-A that taxable services received from abroad by a person belonging to India are taxed in the hands of the Indian residents. In such cases, the Indian recipient of the taxable services is deemed to be a service provider. Before enactment of Section 66-A there was no such provision in the Act and therefore, the Respondents had no authority to levy service tax on the members of the Petitioners-association - Respondents are restrained from levying service tax from the members of the Petitioners-association for the period from 1-3-2002 till 17-4-2006 - in favour of assessee.

Summary

Issues: Interpretation of Service Tax Rules regarding collection of service tax from foreign based service providers prior to 18.4.2006.

In this judgment by the High Court of Himachal Pradesh, the main issue revolved around the interpretation of the Service Tax Rules concerning the collection of service tax from foreign based service providers before 18.4.2006. The question of law admitted for appeal was whether the Tribunal was correct in holding that the collection of service tax from the service receiver in the case of foreign based service providers was permissible only from 18.04.2006, despite the provision in Rule 2(d)(iv) of the Service Tax Rules, 1994, which indicated applicability from 16.08.2002. The Division Bench of the Bombay High Court in a previous case had held that the imposition of service tax is on the persons rendering the services, and the levy of tax cannot be shifted to the recipients of the services. The Supreme Court's judgment in a related case clarified that the enactment of Section 66A in 2006 provided legal authority to levy service tax on recipients of taxable services. As a result, the High Court decided in favor of the assessee, following the judgments of the Bombay and Delhi High Courts, and rejected the appeal against the Revenue, with no costs imposed.

The judgment highlighted the legal provisions and interpretations regarding the liability to collect/deduct service tax from foreign based service providers before 18.4.2006. It referenced the Supreme Court's stance on the imposition of service tax on service providers and the invalidity of shifting the levy to service recipients. The enactment of Section 66A in 2006 was crucial as it granted legal authority to levy service tax on recipients of taxable services, which was not present before. The judgments of the Bombay and Delhi High Courts, which ruled in favor of the assessee, were followed in this case, leading to the rejection of the appeal against the Revenue. The rejection of the appeal was based on the legal precedents established by the higher courts and the interpretation of relevant legal provisions, ultimately deciding the issue in favor of the assessee.