2013 (5) TMI 204 - AT - Service Tax

Accounts maintenance charges - Service tax demand - Held that - As regards the account maintenance charges, in view of the Stay Order dated 29.12.2011 the appellants have made out a prima facie case in their favour. Transaction charges - Held that - The documents submitted in the form of FAQ-Equities, prima facie, make it clear that the appellants are entitled to collect transaction charges levied by NSE and therefore, the same cannot be treated as charges towards stock brokerage. Further, these charges are taxable from May 2008 under Section 65(105) (zzzzg) as charges collected by the exchange. Thus there shall be waiver of dues as per the impugned order and stay of recovery thereof till disposal of the appeal.

Summary

Issues:
1. Whether the amounts collected as 'transaction charges' and 'account maintenance charges' by a stock broker are liable to service tax.
2. Whether the appellants have made out a prima facie case in their favor regarding account maintenance charges.
3. Whether the transaction charges collected by the stock broker can be treated as charges towards stock brokerage.

Analysis:
1. The appellant, a registered stock broker, collected amounts in the name of 'brokerage charges' and 'transaction charges' from investors. A show-cause notice was issued proposing service tax on these amounts. The appellant argued that transaction charges were collected on behalf of the stock exchange and are taxable under 'Stock Broking Service' from May 2008. The Additional Commissioner contended that transaction charges should be paid by the stock broker themselves. The Tribunal found that account maintenance charges should be excluded for service tax purposes based on a previous Stay Order. Regarding transaction charges, the Tribunal noted that the appellants were entitled to collect charges levied by the National Stock Exchange, which cannot be treated as charges towards stock brokerage. The charges were deemed taxable from May 2008 under a specific section.

2. The Tribunal considered the submissions from both sides and found a prima facie case in favor of the appellants regarding account maintenance charges. Citing a previous Stay Order, the Tribunal ruled that there should be a waiver of dues and a stay of recovery until the appeal is disposed of. The Tribunal's decision was based on the documents submitted by the appellant and the specific guidelines related to transaction charges issued by the National Stock Exchange.

3. The Tribunal's analysis focused on the distinction between transaction charges collected by the stock broker on behalf of the stock exchange and charges related to stock brokerage services. The Tribunal's decision to grant a waiver of dues and stay of recovery was based on the specific nature of the charges collected by the appellant and the applicability of service tax laws from May 2008. The Tribunal's detailed examination of the facts and legal provisions led to a favorable outcome for the appellant in terms of the liability for service tax on transaction charges and account maintenance charges.