2019 (3) TMI 1100 - AT - Service Tax

Levy of service tax on leasing/hire purchase transactions - Operating lease or Finance Lease? - Banking and other Financial Services - vires the provisions of Articles 14, 19(1)(g), 265, 366, (29A), Entry 54, List-II, Schedule VII of the Constitution of India - Scope of legislative competence of Parliament - Held that - After determination of the lease in an Operating Lease, the lessee has to return the equipment/vehicle to the lessor. The lessee is not entitled to own or does not have an option to own the asset at the end of the lease period, which is the distinguishing feature between an Operating Lease and a Financial Lease - Ld. Counsel for the appellant has also produced the financial statements of the appellant-company during the period 2010-11. As per Accounting Standards (AS-19), the Financial Lease is shown as current assets. Further, the Operating Lease is shown under the category of fixed assets. This is because, the equipment which are given on lease under the category of Operating Lease always remain in the ownership of the lessor (appellant-company). As per the documents, the transactions fall under the category of Operating Lease only. The allegation of the Department that the agreements are actually Financial Lease and that Operating Lease is only a misnomer, is factually wrong. The issue as to whether Operating Lease is subject to levy of service tax has been analyzed by the Tribunal in the case of M/s. Lease Plan India Ltd. 2018 (1) TMI 717 - CESTAT NEW DELHI , where it was held that the lease arrangements on which the respondent assessee discharged VAT are operating leases and are not liable to service tax - Following the said decision, it can be held that the lease agreements are in the nature of Financial Leasing, is incorrect and hence, the demand cannot sustain - impugned Order is set aside - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of leasing transactions as Financial Lease or Operating Lease.
2. Applicability of service tax on Operating Lease transactions.
3. Compliance with the definition of "Banking and Other Financial Services" under the Finance Act, 1994.

Detailed Analysis:

1. Classification of Leasing Transactions as Financial Lease or Operating Lease:
The primary issue was to determine whether the leasing transactions in question were Financial Leases or Operating Leases. The appellant argued that their transactions were Operating Leases, which are distinct from Financial Leases. They emphasized that in Operating Leases, the ownership of the asset remains with the lessor, and the lessee does not have the option to own the asset at the end of the lease period. This distinction is crucial as per the definition provided in the Finance Act, 1994, which outlines that for a lease to be considered a Financial Lease, it must meet all four conditions specified, including the lessee’s entitlement or option to own the asset at the end of the lease period.

The appellant provided detailed explanations and distinctions between Financial and Operating Leases, supported by the Accounting Standards (AS-19) issued by the Institute of Chartered Accountants of India. The Tribunal found that the lease agreements and financial statements supported the appellant's claim that the transactions were Operating Leases, where the ownership and associated risks and rewards of the asset remained with the lessor.

2. Applicability of Service Tax on Operating Lease Transactions:
The appellant contended that Operating Lease transactions were not subject to service tax under the definitions provided in the Finance Act, 1994, during the relevant periods. They argued that the legislative intent was to tax only Financial Leasing Services, which involve the transfer of substantial risks and rewards of ownership to the lessee.

The Tribunal referred to the Supreme Court judgment in the case of M/s. Association of Leasing & Financial Service Companies Vs. Union of India, which differentiated between Financial Leases and Operating Leases, stating that only Financial Leasing activities were liable to service tax. The Tribunal concluded that the appellant's transactions were indeed Operating Leases and thus not subject to service tax.

3. Compliance with the Definition of "Banking and Other Financial Services" under the Finance Act, 1994:
The Tribunal examined the definition of "Banking and Other Financial Services" as amended from time to time, particularly focusing on the explanation provided after 01.07.2007. The definition included Financial Leasing Services but did not explicitly cover Operating Leases. The Tribunal analyzed the lease agreements and found that they did not satisfy the fourth condition of the explanation, which is crucial for classifying a lease as a Financial Lease.

The Tribunal also considered the financial statements of the appellant, which showed that Operating Leases were categorized as fixed assets, reinforcing the claim that these were Operating Leases. The Tribunal concluded that the Department's allegation that the agreements were Financial Leases was factually incorrect.

Conclusion:
The Tribunal set aside the impugned order, stating that the appellant's transactions were Operating Leases and not subject to service tax. The appeals were allowed with consequential reliefs as per law. The Tribunal's decision was pronounced in open court on 18.03.2019.