2009 (6) TMI 61 - AT - Service Tax

Providing Terminals - Stock brokers - The appellants have been created to provide additional facility to the members of the Madras Stock Exchange to trade with the Mumbai Stock Exchange as per Memorandum of Association and Articles of the appellants, they act as a market intermediary for facilitating the transactions of the members of the MSE and with other stock exchanges where the appellants are members. They provide terminals for the members of the MSE to trade with Mumbai Stock Exchange and other Stock Exchanges Held that - The appellants cannot be considered as stock broker as they are not involved in the sale and purchase of securities and as per the Articles of Association, the appellants shall not undertake any dealings in securities on its own account

Summary

Issues:
Interpretation of the definition of a stock broker under section 65(101) of the Finance Act, 1994.
Assessment of taxable service under section 65(105)(a) provided by a stock broker.
Determining whether the appellants qualify as stock brokers and render taxable services in connection with the sale or purchase of securities.
Validity of the differential service tax liability, interest, and penalty imposed on the assessee.

Analysis:
The case involved a dispute regarding the classification of the appellants as stock brokers and the assessment of their taxable services under the relevant provisions of the Finance Act, 1994. The Commissioner (Appeals) had upheld the differential service tax liability assessed on the assessee, along with interest and penalty. The department contended that the appellants qualified as brokers under section 65(101) and provided taxable services under section 65(105)(a) by facilitating transactions between members of the Madras Stock Exchange (MSE) and other stock exchanges.

Upon review, the Tribunal analyzed the definitions provided under the Act. Section 65(101) defined a stock broker as a person registered as a stock broker in accordance with the rules and regulations under the Securities and Exchange Board of India Act, 1992. Section 65(105)(a) defined taxable service as services provided by a stock broker in connection with the sale or purchase of securities listed on a recognized stock exchange. The appellants, as per their Memorandum and Articles of Association, acted as market intermediaries for MSE members to trade with other stock exchanges, providing facilities and terminals for trading.

The Tribunal noted that the appellants were created to facilitate transactions for MSE members and did not engage in direct sale or purchase of securities. Only MSE members, who acted as stock brokers independently, were eligible to become members of the appellants. The appellants received fees for the facilities provided, while the MSE members received commissions directly from investors. The Tribunal concluded that the appellants did not meet the criteria to be classified as stock brokers under the Act and did not provide taxable services under section 65(105)(a).

Therefore, the Tribunal set aside the demand for service tax, interest, and penalty imposed on the appellants, as they were not considered stock brokers and did not render taxable services as defined in the relevant sections of the Finance Act, 1994. The appeal was allowed in favor of the assessee, overturning the decision of the Commissioner (Appeals) and relieving the appellants from the imposed liabilities.