2014 (11) TMI 757 - AT - Service Tax

Business Auxiliary Services - collection of toll charges on behalf of CIDBI or not - Held that - The appellants relied on the various provisions of Memorandum of Agreement, Tripartite Assignment Agreement, and also adduced additional evidence in the form of letters from the lead Banker M/s. IDBI, wherein they are treating the appellant only as the Concessionaire and accordingly the funds have been released to them. The appellants have also produced the letter from the Income Tax department, wherein the income tax concessions available to the Concessionaire has been granted only to the appellant and not to CIDBI. even as per the department s allegations that they were acting as collection agents, though not admitting, the demand should have been made only of the commission charges, if any, paid by CIDBI. As a matter of fact, there was no such commission paid at all. Following decision of assessee s own previous case 2013 (1) TMI 166 - ANDHRA PRADESH HIGH COURT - Decided in favour of assessee.

Summary

Issues Involved:
Interpretation of Memorandum of Agreement (MOA) and Tripartite Assignment Agreement regarding toll collection in Build Operate Transfer (BOT) project; Allegation of Business Auxiliary Service and service tax liability on toll charges collected; Determination of Concessionaire status between CIDBI and STPL; Impact of High Court decision on similar issues; Settlement of the matter in favor of the appellant.

Analysis:

1. Interpretation of MOA and Tripartite Assignment Agreement:
The appellant, engaged in BOT activities, entered into agreements with NHAI and CIDBI for infrastructure projects. The Department alleged that toll charges collected by STPL on behalf of CIDBI constituted Business Auxiliary Service, triggering service tax liability. The appellant argued that as per the agreements, they were the Concessionaire, not CIDBI. They presented evidence from MOA, Tripartite Assignment Agreement, bank letters, and NHAI correspondence supporting their Concessionaire status. The Notification of 2009 also clarified STPL as the Concessionaire. The appellant contended that even if acting as collection agents, they should only be liable for commission charges, which were not paid.

2. Allegation of Business Auxiliary Service and Service Tax Liability:
The Department issued a show-cause notice demanding service tax on toll charges, alleging STPL collected on behalf of CIDBI. The appellant refuted this, emphasizing their Concessionaire status and lack of commission payments to CIDBI. The High Court decision and subsequent adjudications favored the appellant, indicating the matter's settlement in their favor. The Tribunal noted the finality of the issues based on the High Court's decision and dropped further proceedings.

3. Determination of Concessionaire Status:
The crux of the dispute revolved around the Concessionaire status between CIDBI and STPL. The agreements, notifications, and correspondences established STPL as the Concessionaire, refuting the Department's claim that CIDBI held this position. The clarification in the 2009 Notification further solidified STPL's Concessionaire status, leading to the Tribunal's decision in favor of the appellant.

4. Impact of High Court Decision and Settlement:
The Tribunal acknowledged the impact of the High Court decision on similar issues involving the appellant, which had been settled in their favor. This precedent, along with subsequent adjudications dropping further proceedings, reinforced the finality and settlement of the matter in favor of the appellant. Consequently, the appeals were allowed, granting consequential relief to the appellants based on the settled Concessionaire status and lack of service tax liability on toll charges.

This detailed analysis highlights the key legal aspects, interpretations of agreements, tax liabilities, Concessionaire status determination, and the impact of previous judicial decisions on the final judgment in favor of the appellant.