2015 (12) TMI 819 - AT - Service Tax

Business Auxiliary services - Commercial concern - Invocation of extended period of limitation - Held that - Since definition of commercial concern which have taken effect from 1.5.2006 wherein the word commercial concern has been substituted by any person. Therefore intention of the legislature is clear that prior to 1.5.2006, the services provided by an individual was not to be treated as service provided by commercial concern. Moreover in this case, show cause notice has been issued by invoking extended period of limitation whereas there is no suppression on the part of the appellant that appellant being a commercial concern suppressed the fact from the department not to pay the service tax. In these circumstances, I hold that appellant is not required to pay service tax for the period 2004-2005 and 2005-2006 under the category of business auxiliary service being an individual by invoking extended period of limitation. - Decided in favor of assessee.

Summary

Issues:
Appeal against demand of service tax for the period 2004-05, 2005-06 under Business Auxiliary services category by individual provider. Interpretation of "commercial concern" in relation to service tax liability. Applicability of case laws and extended period of limitation for issuing show cause notice.

Analysis:
The appellant contested the demand for service tax under Business Auxiliary services category for the period 2004-05, 2005-06, arguing that as an individual provider, they should not be liable for service tax based on precedents like Bazpur Co-op Sugar Factory Limited case and Mangal Singh case. The appellant's counsel highlighted that the definition of "commercial concern" is crucial in determining tax liability and disputed the invocation of extended period of limitation for the show cause notice.

The respondent supported the impugned order, citing the case of CCE vs. Employ Me and the definition of "commercial concern" from the Oxford Advanced Learners dictionary. Additionally, the respondent referred to the decision in Laxmi Engineering Works case to support the definition of commercial concern as an entity engaged in profit-making activities.

Upon hearing both parties and evaluating the arguments, the judge found that the definition of commercial concern, as per the case law cited by the respondent, did not align with the appellant's situation as an individual service provider. The judge differentiated the case of Laxmi Engineering Works, which involved a sole proprietorship, from the present case. The judge emphasized that prior to 1.5.2006, services provided by individuals were not considered services provided by commercial concerns. Moreover, since there was no evidence of suppression by the appellant to avoid paying service tax, the judge ruled in favor of the appellant, stating they were not liable to pay service tax for the mentioned period under the Business Auxiliary services category.

Consequently, the impugned order demanding service tax was set aside, and the appeal was allowed with any consequential relief.