2021 (3) TMI 615 - AT - Service Tax

Non-payment of service tax - recovery of certain amount from the employees who opted termination of employment or resignation from service before serving the notice period prescribed under the contract of employment - violation of Section 66E(e) of Finance Act, 1994 - HELD THAT - The issue of levy of service tax on the amount received by the employer from the employee in lieu of notice period on termination of employment is no more res integra and covered by the judgment of the Madras High Court in GE T and D India Ltd s case 2020 (1) TMI 1096 - MADRAS HIGH COURT where it was held that Though normally, a contract of employment qua an employer and employee has to be read as a whole, there are situations within a contract that constitute rendition of service such as breach of a stipulation of noncompete. Notice pay, in lieu of sudden termination however, does not give rise to the rendition of service either by the employer or the employee. There are no merit in the order passed by the Learned Commissioner (Appeals) - appeal allowed - decided in favor of appellant.

Issues:
1. Allegation of non-payment of service tax by the appellant.
2. Interpretation of Section 66E(e) of Finance Act, 1994.
3. Applicability of service tax on recovery of amount in lieu of notice period.
4. Comparison with relevant legal precedents.
5. Appeal against Order-in-Appeal No. MKK/2/RGD APP/2018-19.

Analysis:
1. The appellant was issued a show cause-cum-demand notice for alleged non-payment of service tax amounting to &8377; 2,86,209/- during 2012-13 to 2015-16 due to recovery of certain amounts from employees who opted for termination of employment before serving the notice period as per the contract, in violation of Section 66E(e) of Finance Act, 1994. The demand was confirmed with interest and penalty, leading to the filing of an appeal before the Commissioner (Appeals) who upheld the decision, resulting in the current appeal.

2. The appellant argued that the recovery of amounts in lieu of notice period does not fall under the scope of service tax as per the terms and conditions of employment contracts. Citing the judgment of the Madras High Court and a Tribunal case, they contended that the recovery is not taxable under the law. The Board's clarification on the issue was also highlighted, emphasizing that amounts paid for premature termination of employment contracts are not chargeable to service tax.

3. The Tribunal examined the issue of levying service tax on amounts received by the employer from employees in lieu of notice periods upon termination of employment. Referring to the Madras High Court judgment, the Tribunal noted that such recoveries do not constitute a taxable service as clarified by the Board. It was emphasized that the employer did not render any service but merely facilitated the employee's exit upon being compensated, making the recovery non-taxable under Section 66E(e).

4. The Tribunal compared the facts of the case with the legal precedents cited by the appellant, particularly the Madras High Court judgment, which clarified the applicability of service tax on amounts received for premature termination of employment contracts. Relying on the precedent and the Board's clarification, the Tribunal found no merit in the Commissioner's decision and set it aside, allowing the appeal with any consequential relief as per law.

5. In conclusion, the Tribunal ruled in favor of the appellant, setting aside the Commissioner's decision and allowing the appeal based on the interpretation of Section 66E(e) and the legal precedents cited, ultimately determining that the recovery of amounts in lieu of notice period did not attract service tax as per the law and relevant clarifications.

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