2022 (12) TMI 471 - AT - Service Tax

Invocation of extended period of limitation - Demand of service tax with interest - tri-partite agreement - granting rights or permitting commercial use or exploitation of any event including an event relating to art, entertainment, business, sports or marriage - levy of penalty. Whether the amount paid by IMGR to ZEEL as termination fee as per tripartite agreement entered into between the appellant, ZEEL and IMGR can be taxed and if such tax has to be paid by the appellant under the category of permitting commercial use or exploitation of any event service under section 65 (105) (zzzzr)? - HELD THAT - It is undisputed the rights were originally granted to ZEEL at which time they were not taxable. Had ZEEL continued to use the rights for the full 10 years no tax would have been payable. Had an agreement been reached whereby the rights were returned by ZEEL to the appellant for a consideration that could have been a consideration for termination of the original contract. Thereafter, had the appellant sold the rights to IMGR or to any other entities, it would have been taxable under section 65 (105) (zzzzr). The tripartite agreement which has been entered into has effectively circumvented this situation by transferring the rights from ZEEL to IMGR directly with the concurrence of the appellant for a consideration known as the termination fee paid by IMGR to ZEEL. The appellant has not rendered any service in this agreement, but has concurred to the agreement whereby the rights were transferred from ZEEL to IMGR. The amount paid by IMGR to ZEEL on behalf of the appellant cannot be considered as an amount paid to the appellant for any service - Demand set aside - appeal allowed.

Summary

Issues:
Service tax liability on termination fee paid by a third party on behalf of the appellant.
Applicability of extended period of limitation for invoking service tax demand.
Imposition of penalties on the appellant.

Analysis:
1. Service Tax Liability on Termination Fee:
The case revolved around a tripartite agreement involving the appellant, ZEEL, and IMGR, where IMGR paid a termination fee to ZEEL on behalf of the appellant. The Revenue contended that this amount should be subject to service tax under the category of permitting commercial use or exploitation of any event service. However, the appellant argued that it did not receive any payment and that the termination fee was not taxable before the introduction of the negative list regime. The Commissioner held that the amount paid was for the grant of rights by the appellant to IMGR, disagreeing with the appellant's contentions.

2. Extended Period of Limitation:
The appellant challenged the invocation of the extended period of limitation, claiming that they had been filing all required returns. The Commissioner observed that the appellant had not declared the termination fee amount in its returns, justifying the use of the extended period. The Commissioner maintained that the appellant could have shown the amount as non-taxable in the returns, and the issue came to light during an audit of ZEEL's records.

3. Penalties Imposition:
The appellant contested the imposition of penalties, but the Commissioner upheld them. The Commissioner imposed a penalty equivalent to the unpaid service tax amount under section 78 of the Finance Act, 1994, with a 25% reduction benefit. Additionally, a penalty under section 77(2) was imposed for violations of the Finance Act, 1994. However, no penalty was imposed under section 76.

The Tribunal, after hearing both parties, concluded that the appellant did not render any service in the agreement, but merely concurred to the transfer of rights from ZEEL to IMGR. The Tribunal held that the amount paid by IMGR to ZEEL on behalf of the appellant could not be considered payment for any service. Consequently, the demand for service tax was deemed unsustainable, leading to the setting aside of the demand, making the issues of interest, penalty, and time bar irrelevant. The appeal was allowed in favor of the appellant with consequential relief, if any.