2018 (12) TMI 873 - AT - Service Tax

Valuation - includibility - whether the transaction charges received by a stock broker alongwith brokerage charges shall be included in the taxable value? Held that - For the purpose Section 67 of the Act needs to be looked into in accordance whereof the valuation of taxable services for charging service tax in case where provision of service is for a consideration of money, shall be the gross amount charged by the service provider for providing such taxable services. It becomes clear that any amount which is collected not for providing such taxable service, the same cannot form part of that valuation. Irrespective Section 67 has undergone amendment w.e.f. 01.05.2006 but, the interpretation of Section 67 is that the value of taxable service shall be the gross amount charged by the service provider for such service and the valuation of tax service cannot be nothing more or less then the consideration paid as quidproquo for rendering such a service. The fact of the present case is that the appellants as a stock broker were admittedly providing services to the investors/ clients on their own behalf of the stock exchange and the transaction charges in addition to the brokerage charges are collected by the appellant from the clients irrespective of their own behalf or on behalf of the stock exchange - it is only in case the transaction of giving stock broker service is on principal to principal basis that the service is not taxable, in rest of the cases the service is taxable. Similarly, the transaction among if the tax is collected as a pure agent it will not found the part of the gross value required for the assessment else the liability has to be discharged on the amount of transaction value also. Commissioner (Appeals) has appreciated that the appellant is not functioning as a pure agent but since it is an apparent fact that he is simultaneously acting as a pure agent - It was mandate for the authorities below to verify the records to distinguish the cases where the appellant has provided services as pure agent on principal to principal basis from those where the appellant has provided stock brokerage services on its own behalf. Appeal allowed by way of remand.

Summary

Issues:
1. Whether transaction charges received by a stock broker should be included in the taxable value for service tax calculation.

Analysis:
The appeal was filed against the Order-in-Appeal of the Commissioner of Central Excise (Appeals) regarding the non-payment of service tax on transaction charges by the appellant, a stock broking service provider. The appellant argued that transaction charges should not be included in the taxable value as they were reimbursable expenses and incurred as a pure agent. They also contended that the demand was not sustainable as the stock exchange service became taxable after the disputed period. The Department, on the other hand, invoked Rule 5 of Determination of Taxable Value Rules, 2006, stating that all costs incurred by the service provider must be considered for service tax calculation. The adjudicating authorities upheld the demand, emphasizing the definition of a stock broker under the Act. However, the Tribunal observed that Rule 5 exceeded the scope of Section 67 of the Act, which defines the taxable value as the gross amount charged for providing taxable services. The Tribunal referred to a Supreme Court decision declaring Rule 5 ultra vires, rendering any demand based on it unsustainable.

The Tribunal further analyzed the nature of services provided by the appellant as a stock broker and the tax liabilities associated with stock exchange transactions. It was noted that the appellant collected transaction charges from clients, irrespective of acting on their behalf or on behalf of the stock exchange. The Tribunal referred to a Service Tax Circular defining taxable services provided by stock brokers. It clarified that services on a principal to principal basis were not taxable, while transactions with non-members of the stock exchange were subject to service tax. The Tribunal found that the authorities failed to distinguish cases where the appellant acted as a pure agent from those where stock brokerage services were provided on its behalf. Due to this lack of distinction, the correct assessment of the appellant's tax liability could not be determined. Consequently, the matter was remanded back to the adjudicating authority for proper verification and assessment of the appellant's liability as a stock broker.

In conclusion, the Tribunal held that the transaction charges received by a stock broker, along with brokerage charges, should be carefully assessed for inclusion in the taxable value for service tax calculation. The decision emphasized the importance of distinguishing cases where the appellant acted as a pure agent and provided services on a principal to principal basis for accurate tax liability assessment. The judgment highlighted the necessity of adhering to Section 67 of the Act and ensuring compliance with relevant circulars for determining taxable services provided by stock brokers.