2013 (12) TMI 968 - AT - Service Tax

Banking and other financial services u/s 65(125) (zm) of Finance Act Scope of the term Financial Lease - Service provided to customer by a banking company or a financial Institution in relation to banking and other financial services attracted service tax Held that - The lease agreements are not financial lease agreements, the same would not be exigible to service tax under section 65(105) (zm) r.w. section 65(12) company can be said to be rendering banking and other financial services only if its transactions with the customers are of financial nature - even during the period price to 01.06.07 when there was no definition of the term Financial Leasing in Section 65(12), this term did not cover the operating lease agreements in which there is no clause giving the lessee, at the end of the lease period, entitlement to purchase the asset an option to purchase the asset. In absence of its definition in it, is to be interpreted in the sense in which it is understood in common parlance or trade parlance no infirmity in the impugned order - as decided in National Oxygen Ltd. Vs. CCE Pondichery (2007 (4) TMI 41 - CESTAT, CHENNAI) reported in has held that the expression any other body corporate in the definition of Banking and other financial service must be read in ejusdem generis with the expression occurring prior thereto in the definition - there is no evidence to show that the lessee agreements cover 75% or more of the estimated economic life of the leased assets Decided against the revenue.

Summary

Issues:
Interpretation of the term "financial leasing services" under Section 65(12) of the Finance Act, 1994 prior to June 2007.

Analysis:
The case involved a dispute regarding the applicability of service tax on the leasing of aircraft parts by the respondent to airlines. The Revenue contended that the leasing activity fell under the definition of "banking and financial services" under Section 65(12) of the Finance Act, 1994, and hence attracted service tax. The Commissioner initially dropped proceedings against the respondent, but a review order directed an appeal to be filed. The main argument by the Revenue was that the activity constituted a finance lease, even though the agreements did not include an option for the lessee to own the assets at the end of the lease period.

The respondent argued that their activity was an operational lease, not a finance lease, as there was no provision for the lessee to own the leased assets at the end of the lease period. They relied on the distinction between finance lease and operating lease, citing relevant case law and international accounting standards. The respondent contended that the definition of finance lease added in 2007 was clarificatory and should not apply retrospectively.

The Tribunal analyzed the nature of finance lease agreements, emphasizing that in a finance lease, the lessee effectively owns the asset with risks and rewards transferred, and there is an option to purchase the asset at the end of the lease period. On the other hand, in an operating lease, ownership remains with the lessor, and there is no option to purchase the asset. The Tribunal referred to relevant case law and international accounting standards to interpret the term "financial lease."

Ultimately, the Tribunal found that the respondent's agreements did not meet the criteria of a finance lease as understood in the law. Since there was no provision for the lessees to own the assets at the end of the lease period, the lease agreements were not subject to service tax under the relevant provisions of the Finance Act, 1994. The Tribunal dismissed the Revenue's appeal, upholding the decision that the leasing activity did not fall under the definition of financial leasing services for the purpose of service tax.