2014 (8) TMI 25 - AT - Service Tax

Business auxiliary service - assessee is commercial concern or not - Penalty 76, 77 & 78 - Held that - Appellant cannot get out of the tax net on the pleading that they are not a commercial concern. Services provided by the appellant is covered by the expressions any customer care service provided on behalf of the client and also under the clause provision of service on behalf of client and hence taxable. However in view of the decisions in the Tribunal in favour of the appellant which were in force for some time, extended period cannot be invoked in this case. So the demands falling within the normal period of one year is confirmed along with appropriate interest. In the facts and circumstances of the case, imposition of penalties is not justified - Decided partly in favour of assessee.

Summary

Issues:
1. Taxability of services rendered by a co-operative society to a government entity.
2. Interpretation of "business auxiliary service" under Section 65(19) of Finance Act, 1994.
3. Applicability of extended period for demand of service tax.
4. Consideration of co-operative society as a commercial concern for service tax levy.
5. Classification of services as "customer care service provided on behalf of the client."
6. Allegation of suppression due to non-registration and non-filing of returns by the appellant.
7. Imposition of interest and penalties under Sections 75, 76, 77, and 78 of Finance Act, 1994.

Analysis:
The judgment involves two appeals by a co-operative society of retired government servants regarding the taxability of services provided to Jaipur Vidyut Vitharan Nigam Ltd. (JVVNL) for collecting electricity bills. The Revenue contended that the services fell under "business auxiliary service" as defined in Section 65(19) of the Finance Act, 1994. The appellant did not register or pay service tax on the commission received from JVVNL, leading to demands for unpaid service tax, interest, and penalties.

The appellant argued that as a co-operative society of retired military personnel, they should not be considered a commercial concern, citing relevant precedents. Additionally, they claimed that they were not providing services to JVVNL's customers directly, thus not falling under taxable activities. The appellant also asserted their belief that they were not a commercial concern, challenging the invocation of the extended period for demand.

The Revenue relied on a High Court decision stating that a co-operative society without profit motive should be considered a commercial concern for service tax purposes. They argued that the services provided by the appellant constituted customer care service on behalf of JVVNL, making them taxable. The Revenue also alleged suppression due to non-registration and non-filing of returns by the appellant.

The Tribunal held that the appellant could not avoid tax liability by claiming not to be a commercial concern, as per the High Court decision. They determined that the services provided were indeed customer care services on behalf of JVVNL, falling within taxable activities. However, the Tribunal ruled that the extended period could not be invoked due to previous Tribunal decisions in favor of the appellant. As a result, demands falling within the normal one-year period were confirmed, with interest, but penalties were deemed unjustified.

In conclusion, the appeals were partially allowed based on the above considerations, emphasizing the tax liability of the appellant for services provided to JVVNL, while setting aside penalties due to the circumstances of the case.