2020 (4) TMI 181 - AT - Service Tax

information technology software service - Demand of service tax - portion of the consideration received from the four customers in India computed in terms of employees utilised at the premises of the respondent for fulfilling the transaction contracted with them - receipts for operation of offshore development centre - HELD THAT - The normal activities of a commercial transaction with the four customers, notwithstanding the deployment of staff at the premises of the latter being taxable as a service, which may have been recompensed by monetising the time spent by the employees of the respondent on discharging a contractual obligation cannot be construed as a service merely because another transaction, being taxable service, has been established. To extend the logic of the grounds of appeal would be tantamount to subjecting every commercial activity, other than manufacture, to the tentacles of Finance Act, 1994 which clearly is not the legislative intent. The designation of such deployed staff in a segregated portion of the premises of the respondent, not too unusual model in the software industry, is merely an extension of off-site activity pertaining to information technology software service that is not exigibile to tax. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Taxability of 'manpower recruitment or supply service'
2. Taxability of 'support services of business or commerce'
3. Taxability of 'offshore development center' services
4. Consideration of export services and their taxability

Detailed Analysis:

1. Taxability of 'manpower recruitment or supply service':
The primary issue in the first appeal is the adjudicating authority's failure to consider three aspects related to taxability as a provider of 'manpower recruitment or supply service'. The Revenue contended that the adjudication order should have upheld the demand for ?21,59,950 and ?60,71,755 for the earlier period and the amount payable for the period from 1st April 2008 to 15th May 2008. The Tribunal referenced the decision in Cognizant Tech Solutions (I) Pvt Ltd v. Commissioner, LTU, Chennai, which clarified that if the manpower recruited and retained by the appellants are under their management and not supplied to another entity, it does not constitute 'manpower supply'. The Tribunal found that the workforce recruited and retained by the respondent was for providing specialized services, thus not liable for service tax under 'manpower recruitment or supply service'.

2. Taxability of 'support services of business or commerce':
The second issue revolves around the definition and taxability under 'support services of business or commerce'. The Tribunal noted that the adjudicating authority had dropped the demand for charges related to 'off-site' deployment, accepting that such activities were only taxable from 16th May 2008 when 'information technology or software service' was included in section 65(105) of the Finance Act, 1994. The Tribunal upheld this view, stating that activities undertaken at the respondent's premises did not fall within the ambit of 'support services of business or commerce'.

3. Taxability of 'offshore development center' services:
The third issue was whether the operation of an 'offshore development center' for M/s HSBC, taxable under section 65(105)(zzzq) of the Finance Act, 1994, was liable for service tax. The adjudicating authority accepted that the 'offshore development center' was intended to maintain work confidentiality at the respondent's premises, thus relieving them of the tax demand. The Tribunal agreed, noting that the services provided were part of 'information technology software service', which was not taxable.

4. Consideration of export services and their taxability:
The final issue was the taxability of charges recovered from overseas customers. The adjudicating authority had dropped the demand entirely, accepting that these were exports on which tax liability did not arise. The Tribunal noted that the Revenue did not dispute the finding of export or the non-taxability of services rendered to overseas customers. Consequently, the second appeal concerning tax of ?27,15,68,977 for the period from 1st April 2009 to 31st March 2010 was not considered, as the transactions were accepted as exports beyond the pale of taxation.

Conclusion:
The Tribunal found no merit in the appeals of Revenue and dismissed them, upholding the adjudicating authority's decision to drop the demands. The Tribunal emphasized that normal commercial transactions and deployment of staff at the respondent's premises for fulfilling contractual obligations could not be construed as taxable services merely because another taxable service had been established. The designation of deployed staff in a segregated portion of the respondent's premises was seen as an extension of 'information technology software service', not subject to tax.