2017 (7) TMI 294 - AT - Service Tax

Non-payment of service tax - services received from the branches as well as the services availed by the permanent establishment for which payment has been made by the headquarters of the appellant - Held that - It is apparent that the tax authorities find themselves confounded by the inappropriate application of section 66A to the transaction between the overseas branch and the appellant. That tax should be levied on services enumerated in section 65 (105) of Finance Act, 1994 received from abroad is axiomatic. That corporates exist as globalised entities with subsidiaries, branches and other establishments is a commercial reality. Though such branches have an independent status owing to the existence of frontiers in legislative jurisdiction, commercially, there is no distinction between a branch and its head office. More so, in the context of accounting treatment except that the final accounts of the entity may indicate the branch operations separately. Nevertheless, an expense of the branch is an expense of the entity and a receipt in the branch is a receipt of the entity. Unless it is also established that the service has been provided to the person in India, a monetary transfer is not sufficient to invoke section 66A of Finance Act, 1994. In the absence of an activity between the branch and the headquarters for an identified consideration, the remittance received from overseas customers through the branch to the appellant would not be liable to tax. With the adjudicating authority having segregated the services that are not relatable to the location of the recipient under the Place of Provision of Services Rules, 2012, taxes been confirmed on such services as are relatable to the location of the recipient. It has been held that it is not the overseas branch/permanent establishment that has received the service but the entity in India. We note that the demutualisation that has been legislated in section 66A would not be applicable after 1st July 2012. Consequently, there is no distinction between the overseas establishment and the controlling establishment in India. It would therefore appear that, for the period after 1st July 2012 the services that have been availed and which fall within the scope of rule 4 of Place of Provision of Services, 2012 are liable to tax - matter needs reconsideration for the purpose of quantification - appeal allowed by way of remand.

Issues Involved:
1. Tax liability on services availed by overseas branches/permanent establishments.
2. Applicability of section 66A of Finance Act, 1994.
3. Determination of taxability under Taxation of Services Rules, 2006 and Place of Provision of Services Rules, 2012.
4. Remittances made by headquarters to branches and their tax implications.
5. Treatment of services rendered by branches to overseas customers.

Issue-Wise Detailed Analysis:

1. Tax Liability on Services Availed by Overseas Branches/Permanent Establishments:
The appellant, M/s KPIT Technologies Ltd, was scrutinized for non-payment of tax on services availed by their overseas branches and permanent establishments. The branches, which operate independently under local laws, enter contracts and receive payments for services rendered, while also consuming services from local providers. The headquarters remits funds to cover operational costs of these branches. The tax authorities initiated proceedings against the appellant for the alleged non-payment of tax on these services.

2. Applicability of Section 66A of Finance Act, 1994:
The appellant discharged tax liability under section 66A for services obtained from overseas providers but not for services availed by overseas branches. The show cause notice demanded tax for services rendered by branches to overseas customers and remittances made in foreign currency towards expenses incurred by the establishments abroad. The Tribunal referenced decisions in Milind Kulkarni and Coastal Gujarat Power Ltd, which delved into section 66A's scope, emphasizing that the responsibility for tax liability devolves on the service recipient in India due to the legal fiction in section 66A.

3. Determination of Taxability Under Taxation of Services Rules, 2006 and Place of Provision of Services Rules, 2012:
The impugned demand straddled periods governed by two statutory instruments: the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, and the Place of Provision of Service Rules, 2012. The Tribunal noted that the determination of receipt of service could be in relation to the location of the service object, performance location, or recipient location. The Tribunal emphasized that the legal fiction in section 66A is limited to shifting the tax liability to the recipient in India and does not cover remittances received by the recipient of the service.

4. Remittances Made by Headquarters to Branches and Their Tax Implications:
The adjudicating authority held that the branches provide services to the appellant and that remittances made by branches to the appellant constitute consideration for services rendered to overseas customers. The Tribunal found an inherent contradiction in this finding, noting that the legal fiction in section 66A does not cover remittances received by the recipient of the service. The remittances by branches to the appellant are not liable to be taxed under section 66A.

5. Treatment of Services Rendered by Branches to Overseas Customers:
The Tribunal observed that the tax authorities misapplied section 66A to transactions between the overseas branch and the appellant. The Tribunal emphasized that the mutualisation inherent in the branch-headquarters relationship does not offer an avenue to evade tax. The Tribunal clarified that unless it is established that the service has been provided to a person in India, a monetary transfer is not sufficient to invoke section 66A. The Tribunal also noted that the adjudicating authority failed to read section 66A(2) in conjunction with section 66A(1), leading to an incorrect invocation of the former as the charging section.

Conclusion:
The Tribunal concluded that the remittances received from overseas customers through the branch to the appellant are not liable to tax. The Tribunal remanded the matter back to the original authority to quantify the services availed after 1st July 2012, which fall within the scope of rule 4 of Place of Provision of Services, 2012. The appeals were accordingly disposed of.

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