2017 (5) TMI 285 - AT - Service Tax

Classification of services - maintenance of software services - classifiable under the head information technology service or not? - Held that - the definition of maintenance or repair of software relates to properties, whether movable or immovable and it has been held that software is goods. Consequent upon this, the explanation was inserted in section 65(105)(zzg) and as pointed out, this Tribunal has considered in Phoenix IT Solutions 2011 (1) TMI 642 - CESTAT, BANGALORE , whether the insertion of the explanation could further the case of Revenue for demand tax from the date that the service was made taxable. Taking all factors into consideration, the Tribunal has held that there is no retrospective application by insertion of the explanation. The period under dispute in the present case is from 9th July 2004 to 6th October 2005 - the demand of service tax is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against demand of tax for maintenance of repair service.

Analysis:
The appellant, M/s Larsen & Toubro Infotech Limited, appealed against a demand of tax for providing 'maintenance of repair service' for a specific period. The appellant contended that they provided 'information technology services' which became taxable only from a later date. The Tribunal analyzed the legislative provisions and held that the services provided were in the nature of information technology software service, taxable from a later date. The Tribunal referred to relevant case laws and held that a new taxable service under a specific entry will not attract tax under any preexisting entry. The Tribunal further discussed the distinction between maintenance of information technology software and computer software, emphasizing that the services provided fell under information technology software service, not maintenance or repair service. The demand of service tax and penalties were set aside based on these findings.

In another case, Phoenix IT Solutions Ltd v. Commissioner of Central Excise, Visakhapatnam, the Tribunal discussed the retrospective taxation of software maintenance services. The appellant argued that software maintenance became taxable only from a later date, not the date mentioned in the demand. The Tribunal considered the explanation inserted in the relevant legislation and held that there was no retrospective application of the explanation. The Tribunal emphasized the importance of considering the specific services provided and the applicable taxation provisions. Based on these considerations, the Tribunal held that the demand of service tax was not sustainable and set aside the impugned order, allowing the appeal.

The decisions in both cases highlighted the significance of the specific nature of services provided, the legislative provisions, and the timing of taxation applicability. The Tribunal's analysis focused on the distinction between different types of software services and the implications of legislative amendments on tax liability. The judgments provided clarity on the retrospective application of taxation provisions and the proper classification of services for tax purposes. Ultimately, the Tribunal's decisions were based on a thorough examination of the legal framework and relevant precedents, leading to the setting aside of the demands for service tax in both cases.