2018 (8) TMI 493 - AT - Service Tax

Levy of service tax - Goodwill - reimbursable expense - It is the case of the Department that the amount is the consideration received by the appellant for services provided by foreign service providers - Reverse charge mechanism - Held that - Undisputedly, the services are in respect of due diligence, legal compliance requirements, market analysis, etc., made by the foreign service providers before incorporation of the appellant-company. The appellant-company has been issued certificate of incorporation only on 01.05.2008. These services are provided much prior to the date of incorporation. There has been no agreement between the appellant and the foreign service providers for providing service. It is actually M/s. RIHL which is the foreign company who has required the service providers to provide various services of due diligence before acquisition. In such event, merely because the said amount is shown in the books of the appellant, the activity cannot be considered as service provided to appellant so as to attract the levy of service tax. To levy service tax, the activity/transaction should involve a relationship of service provider and service recipient. In CBEC Education Guide (T.R.U.- Circular 20/ 2012), the Board has clarified the necessity to look into the quid pro quo in a transaction. It is explained therein that the concept of activity for consideration involves an element of contractual relationship, wherein the person doing an activity does so on the desire of the person for whom the activity is done in exchange of consideration - In the present case, there is no desire on the part of appellant to the service providers that they should do any service to the appellant. Neither is there an offer nor an agreement by the service providers to provide service to the appellant. The consideration has also not been passed by the appellant to the service providers. In such event, the activity does not attract levy of service tax and the demand cannot sustain. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability to pay service tax under reverse charge mechanism for services received from foreign service providers.
2. Applicability of Rule 5(1) of the Valuation Rules.
3. Consideration of reimbursable expenses for service tax.
4. Grounds of limitation and suppression.
5. Interpretation of service recipient relationship for levy of service tax.

Analysis:
1. The case involved the liability of the appellant to pay service tax under the reverse charge mechanism for services received from foreign service providers. The appellant argued that as a joint venture company with a foreign shareholder, the services were availed by the foreign company and not directly by the appellant. The Tribunal observed that there was no contractual relationship between the appellant and the service providers, and the consideration was not passed by the appellant to the service providers. Consequently, the activity did not attract service tax, and the demand was set aside.

2. The appellant contested the demand raised under Rule 5(1) of the Valuation Rules, arguing that the amount in question should be considered as a reimbursable expense and not liable to service tax. The Tribunal referred to a relevant case law and held that the amount in question did not constitute consideration for services provided to the appellant, further supporting the decision to set aside the demand.

3. Regarding the consideration of reimbursable expenses for service tax, the appellant relied on legal precedent to support their argument. The Tribunal considered the nature of the expenses incurred by the foreign company and reiterated that the absence of a direct relationship between the appellant and the service providers negated the applicability of service tax on the amount in question.

4. The appellant raised grounds of limitation and suppression, contending that there was no positive evidence of suppression on their part. The Tribunal noted that the entire issue was revenue-neutral as the appellant would have availed CENVAT Credit on the service tax paid, and suppression cannot be alleged in such cases.

5. The Tribunal analyzed the interpretation of the service recipient relationship for the levy of service tax. Emphasizing the necessity of a contractual relationship and quid pro quo in a transaction, the Tribunal concluded that the absence of desire, offer, or agreement between the appellant and the service providers precluded the levy of service tax. The impugned order was set aside, and the appeal was allowed with consequential reliefs.

This detailed analysis outlines the key legal arguments, interpretations, and conclusions drawn by the Tribunal in the judgment, addressing each issue comprehensively and upholding the principles of service tax liability and contractual relationships in the context of the case.