2008 (4) TMI 159 - AT - Service Tax

Liability of service recipient to pay tax in case of import of services - conflicting views were taken by different Benches on the question of applicability of Rule 2(1)(d)(iv) for the period prior to 1-1-2005 - held that Service tax was not leviable from a resident in India in respect of taxable service provided by a person resident abroad, prior to the enactment of Section 66A ibid - waiver of pre-deposit and stay of recovery to the appellants for the period after 1-1-2005 is granted

Issues:
1. Demand of service tax in the category of "Management Consultancy Service" for the period 2002-03 to 2004-05.
2. Demand of service tax in the category of "Business Auxiliary Service" for the period 9-7-2004 to 31-3-2006.
3. Applicability of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994.
4. Interpretation of Section 66A of the Finance Act, 1994.
5. Tax liability for services provided by a person resident abroad without an office in India.
6. Applicability of service tax to services provided outside India.
7. Pending decision of the Larger Bench regarding the applicability of Rule 2(1)(d)(iv) for the period prior to 1-1-2005.

Analysis:

1. The appeals involved demands for service tax in the categories of "Management Consultancy Service" and "Business Auxiliary Service" for specific periods. The controversy revolved around the interpretation of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, added in 2002. The Revenue argued that this rule authorized the levy of service tax on services provided by non-resident entities. The appellants contended that such taxation could only apply from the enactment of Section 66A in 2006. The issue of penalties imposed was also challenged.

2. The introduction of Section 66A in 2006 was crucial in determining the tax liability for services provided by non-residents. The section specified conditions under which services provided by non-residents to Indian recipients would be taxable. The interpretation of this section was central to the dispute, with the appellants asserting that prior to its enactment, there was no legal basis for taxing such services provided outside India.

3. A key argument focused on whether services provided by non-residents without an office in India could be deemed as received in India by Indian residents. The distinction between "providing of service" and "rendering of service" was highlighted. The location of receipt of services and the payment for those services were crucial factors in determining the tax liability, raising ancillary questions for further consideration.

4. The Tribunal acknowledged the conflicting views on the applicability of Rule 2(1)(d)(iv) for the period before 1-1-2005, as evidenced by the pending decision of the Larger Bench in another case. The Tribunal opted to await the decision of the Larger Bench for cases concerning the period up to 1-1-2005, granting waiver of pre-deposit and stay of recovery for service tax and penalties during this period.

5. Regarding the subsequent period, the Tribunal considered precedents where waiver and stay were granted for demands of service tax post-1-1-2005. Citing relevant case law, the Tribunal granted waiver of pre-deposit and stay of recovery for the appellants for the period after 1-1-2005, as no binding decision to the contrary was presented by the Revenue. The appeals were to await the decision of the Larger Bench for further clarity.

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