2017 (2) TMI 775 - HC - Service Tax

Levy of tax - classification of services - Operations, Management and Development Agreement (OMDA) with the AAI - in the nature of franchise services or not - annual fees - upfront fees - renting of immovable property or franchise services - Held that - The Petitioners, under the OMDA, had to develop, operate and manage the Airports. AAI handed over the demised premises (under the lease deeds) at the Airports to the Petitioners. The Petitioners have spent their own money for designing, developing, constructing, upgrading, modernizing, financing etc., of the airports - the Petitioners do not undertake any process identified with AAI. The Petitioners run their own operations using their own processes, policies, methods, design, techniques etc. The sole responsibility and liability for performances of the services is that of the petitioners. AAI has completely divested its rights (other than reserved activities) to build operate and maintain the airport. Once the functions of AAI have been completely divested by it and assigned to the Petitioners, there is no question of the petitioners representing AAI in performance of those functions. There is no representation right that has been assigned to the petitioners by AAI. The taxable service is not mere granting of a franchise but is where the franchisor provides service to a franchisee. For the transaction to be taxable, it is necessary that the service should be provided by the AAI to the Petitioners. It is not pointed out by the Revenue as to how and in what form service is being provided by AAI to the Petitioners. The Annual Fees paid is not because of any service rendered by AAI to the Petitioner. AAI has entrusted the petitioners with some of its functions under Section 12 of the Airports Authority of India Act and no service is being rendered by the AAI to the petitioners in performance of those functions. Perusal of clauses of OMDA clearly shows that AAI does not render any service to the petitioners. The blocking of Escrow account cannot be sustained as the transaction is not exigible under the taxing entry Renting of Immovable Property Services and further the transaction does not fall within the taxing entry Franchise Service . The OMDA does not constitute a Franchise in terms of Section 65(47) of the Finance Act and the transaction between the Petitioners and AAI does not constitute a taxable service in terms of section 65(105) (zze) of the Finance Act - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Constitutional validity of Section 65(90a) and Section 65(105)(zzzz) of the Finance Act, 1994.
2. Prohibition against charging and collecting Service Tax on the Annual Fee under the Finance Act, 1994.
3. Quashing of the adjudication order denying CENVAT Credit and confirming tax demand under "Franchise Service".
4. Restraint against levying and recovering Service Tax on annual fees under "Renting of Immovable Property Service" and/or "Franchise Services".

Issue-Wise Detailed Analysis:

1. Constitutional Validity of Section 65(90a) and Section 65(105)(zzzz) of the Finance Act, 1994:
The petitioners sought a declaration that the provisions of Section 65(90a) and Section 65(105)(zzzz) of the Finance Act, 1994, as amended, are ultra vires to various Entries of List-II of Schedule VII of the Constitution of India and certain Articles of the Constitution. The court did not specifically address the constitutional validity in detail but focused on the applicability of these provisions to the case at hand.

2. Prohibition Against Charging and Collecting Service Tax on the Annual Fee:
The petitioners argued that the Annual Fee payable under the OMDA is not for renting of immovable property but is a revenue share, thus not subject to Service Tax. The court examined whether the OMDA constitutes a franchise agreement under Section 65(47) of the Finance Act, which defines "franchise" as an agreement granting representational rights. The court concluded that no representational right was granted by AAI to the petitioners, and hence, the OMDA does not constitute a franchise.

3. Quashing of the Adjudication Order:
The petitioners challenged the adjudication order that confirmed the tax demand under "Franchise Service" and denied CENVAT Credit. The court held that the OMDA does not constitute a franchise and no service is being provided by AAI to the petitioners. Consequently, the adjudication order confirming the tax demand under "Franchise Service" was quashed.

4. Restraint Against Levying and Recovering Service Tax:
The petitioners sought restraint against the levy and recovery of Service Tax under "Renting of Immovable Property Service" and/or "Franchise Services" on the annual fees. The court noted that the Revenue's stand was that the transaction is not exigible under "Renting of Immovable Property Services" but under "Franchise Service". Since the court held that the OMDA does not constitute a franchise, the action of the AAI in blocking the Escrow account for recovering Service Tax was quashed.

Reasoning and Analysis:
The court analyzed the terms and conditions of the OMDA to determine if it constituted a franchise. Key clauses indicated that the petitioners were granted exclusive rights to operate, maintain, and develop the airports independently, without representational rights from AAI. The court emphasized that for an agreement to be a franchise, it must grant representational rights, which was not the case here. Additionally, no service was being provided by AAI to the petitioners under the OMDA, which is a requirement for the transaction to be taxable under "Franchise Service".

Conclusion:
The court concluded that the OMDA does not constitute a franchise under Section 65(47) of the Finance Act, and the transaction between the petitioners and AAI does not constitute a taxable service under Section 65(105)(zze). Consequently, the action of AAI in blocking the Escrow account was quashed, and the writ petitions were disposed of accordingly.