2018 (2) TMI 1680 - AT - Service Tax

Business Auxiliary Services - consideration received as a percentage of commission for the services rendered to ICICI Bank - Revenue entertained a view that the appellants provided taxable service under the category of Business Auxiliary Service during the period 01/07/2003 to 31/03/2005 - Held that - we have no doubt that the appellant did market the services provided by the client bank. It will not be correct to state that the appellant only provided operational assistance in such marketing. No such words were used in the terms of the agreement and in fact the agreement directly refers to the appellant as a service provider to mark its products (ICICI Bank) - the appellants are in fact engaged in promotion and marketing activity of the financial products of the client bank. Time limitation - penalty - Held that - due to non-payment of tax and non-filing of returns, the Original Authority held against the appellant both on limitation and penalties - time limitation not invocable. Appeal allowed in part.

Summary

Issues:
1. Whether the appellants provided taxable service under Business Auxiliary Service (BAS) or Business Support Service (BSS)?
2. Whether the demand on limitation and penalties imposed are justified?

Analysis:

Issue 1: Taxable Service under BAS or BSS
The case involved the appellants entering into an agreement with a bank to market its financial products, receiving commission as consideration. The Revenue claimed the appellants provided taxable service under BAS. The Original Authority upheld this view, citing the Finance Act, 1994. The appellant argued they provided operational assistance for marketing, falling under BSS introduced in 2006. They highlighted clauses in the agreement restricting their actions to the bank's instructions, indicating a lack of freedom in marketing. The learned AR contended the appellants were indeed marketing the bank's products, emphasizing the agreement's terms. The Tribunal analyzed the agreement, concluding that the appellants marketed the bank's services, rejecting the argument of mere operational assistance. The Tribunal found the appellants liable under BAS, not BSS, due to their marketing activities as per the agreement.

Issue 2: Demand on Limitation and Penalties
The appellants contested the demand on limitation and penalties, citing a Tribunal decision favoring a similar case. The learned AR opposed, stating no bonafide belief existed during the disputed period. The Tribunal noted overlapping tax liabilities under BAS and BSS, with disputes arising post the introduction of BSS in 2006. While acknowledging the Revenue's argument on the Tribunal decision, the Tribunal found that the decision implied non-taxability under BAS for similar services by other companies. Considering the interpretation during the period, the Tribunal concluded that the appellants couldn't be held liable for tax and penalties under the proviso to Section 73(1) of the Act. The proceedings initiated post an audit in 2006 led to the demand for an extended period and penalties, based on the appellants' responsibility for correct tax payment and return filing. Ultimately, the Tribunal set aside the impugned order only on the limitation issue, allowing the appeal on that ground.

In conclusion, the Tribunal ruled in favor of the appellants on the limitation issue but upheld the tax liability under BAS, rejecting the argument of providing only operational assistance.