2017 (4) TMI 903 - AT - Service Tax

Agency fee - Consulting Engineer Service or not? - tripartite agreement - whether agency fee received by M/s. IRCON is bundled alongwith the cost of road project or is a separate fee received by them for providing consulting engineer service? - Held that - The admitted facts are that there was a Tripartite Agreement dated 31.08.2004 for the construction/up-gradation/commissioning and maintenance of different road projects in the state of Bihar under PMGSY. Under the agreement, IRCON was selected as executing agency for construction/up-gradation/commissioning of the project - The appellants are neither the owner of the constructed roads nor do they construct the road themselves. They have merely provided the technical capabilities and expertise in the management and supervision of projects relating to construction of roads, for which they have received the agency fees. It is also clear from the Tripartite Agreement that the agency fee did not include the cost of road construction, materials or charges for the labour. It is also clear from the Clause 11.2 of the agreement that M/s. IRCONs fee covers the cost of the preparation of DPR, cost involved in inviting and deciding tenders but the cost does not covers the cost of advertisement of tenders in the news papers. In the same clause it is mentioned that latter shall form part of the project cost, which clearly shows that M/s. IRCON s fee is not part of the project cost. The receipt of consultancy fee from the Govt. of Bihar for the construction of rural roads was deliberately suppressed by the appellant and the appellants mis-declared the value of taxable consulting engineer services provided by them. Therefore, the penalty imposed is justified. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the agency fee received by the appellant is bundled with the cost of the road project or is a separate fee for providing consulting engineer services.

Analysis:
The case involved the appellant, engaged in providing taxable services as a Consulting Engineer for road projects in Bihar under PMGSY. The Revenue issued a Show Cause Notice demanding service tax on the agency fee received by the appellant. The appellant argued that the agency fee was part of the project cost and exempt from service tax under a specific notification. The Revenue contended that the appellant was supervising the project, not constructing roads themselves. The key issue was to determine if the agency fee was bundled with the project cost or a separate fee for consulting engineer services.

The Tribunal examined the Tripartite Agreement between the parties, focusing on clauses related to the Executing Agency, Release of Funds, and IRCON's Fee. It was noted that the appellant's role was to provide technical assistance and supervise the project, falling within the definition of Consulting Engineer under the relevant Act. The agency fee did not include costs of road construction or labor charges, as clarified in the agreement. The Tribunal found that the appellant's activities were more of consultancy/management for road construction, evident from the absence of income or expenditure related to road construction in their trial balance.

Comparative analysis with similar cases involving other agencies like National Projects Construction Corporation Ltd. and National Hydro Power Corporation, which paid service tax under similar agreements, supported the Revenue's position. The Tribunal upheld the Commissioner's order demanding service tax and interest, citing the deliberate suppression of consultancy fee receipt by the appellant. The penalty imposed on the appellant for mis-declaration of taxable services was deemed justified based on the evidence presented.

In conclusion, the Tribunal dismissed the appellant's appeal, upholding the Commissioner's order. The judgment highlighted the distinction between construction contracts and consulting engineer services, emphasizing that the agency fee, being separate from the project cost, was subject to service tax. The decision reinforced the importance of accurate declaration of taxable services and upheld the penalties imposed for non-compliance.