2017 (9) TMI 941 - AT - Service Tax

Taxability - commission received for distribution of mutual fund units of various mutual fund companies during the period w.e.f. 09/07/2004 to 31/03/2005 - case of appellant is that the main contractor has duly discharged service tax liability on the said commission - Held that - similar issue decided by the Larger Bench in the case of Vijay Sharma & Co. Versus. Commissioner of Central Excise, Chandigarh 2010 (4) TMI 570 - CESTAT, NEW DELHI , where it was held that sub-brokers are not liable to pay any service tax as the same has already been paid by the main stock broker. Extended period of Limitation - Held that - In this case for the period 9th April 2004 to 31st March, 2005, the SCN has been issued on 24/01/2009 - the demand is time barred on limitation. Appeal allowed on merits as well as limitation - decided in favor of appellant.

Summary

Issues involved:
Demand of service tax on commission received for distribution of mutual fund units during a specific period.

Analysis:
The case involved a dispute regarding the demand of service tax on the commission received by the applicants for distributing mutual fund units from a main contractor. The main contractor had already discharged the service tax liability on the commission received from mutual fund companies. The applicant argued that since the main contractor had paid the service tax, they should not be liable for double taxation under the Finance Act. The applicant relied on a previous decision to support their argument. Additionally, the applicant contended that the matter required interpretation and had been referred to the Larger Bench of the Tribunal, making the extended period of limitation inapplicable based on a Supreme Court decision.

Upon hearing the submissions, the Member (Judicial) referred to a previous case decided by the Larger Bench of the Tribunal. The decision clarified that a sub-broker falls under the definition of a stock broker under the Finance Act. It emphasized that there should be no double taxation under the service tax law unless specifically provided for. If a sub-broker has already paid service tax on a taxable service provided by a stock broker, the stock broker is entitled to credit for the tax paid. The decision highlighted the importance of establishing the chain of identity between sub-broker and stock broker for such set-off. The Tribunal directed the matter back to the original authority for verification and consideration, allowing the appeals by remand.

Moreover, the Member (Judicial) noted that since the issue had been referred to the Larger Bench of the Tribunal, the extended period of limitation was not applicable in this case. The show cause notice issued for the demand of service tax fell outside the limitation period, rendering the demand time-barred. Consequently, the appeal was allowed on both merits and limitation, granting any consequential relief deemed appropriate.