2023 (4) TMI 1019 - AT - Service Tax

Valuation - Business auxiliary services - inclusion of reimbursable expenses for arising at the gross taxable value, or not - applicability of provisions of Section 67 of the Finance Act, 1994 - HELD THAT - That reimbursable expenses have been made includible in the taxable income with effect from May 14, 2015 whereby a clause (a) was amended to include the reimbursable expenditure to the taxable value. The perusal of the provision shows that it has no express retrospective effect. Law is settled that unless expressly provided, the statue has always to be prospective in nature. Prior the aforesaid amendment all reimbursable expenses were not used to be the part of the taxable income. The position stands duly clarified and settled by the Hon ble Apex Court in Intercontinental Consultancy 2018 (3) TMI 357 - SUPREME COURT where it was held that Though, it was not argued by the learned counsel for the Department that Section 67 is a declaratory provision, nor could it be argued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature. In the case of Harinder Goyal, 2015 (12) TMI 1107 - CESTAT NEW DELHI as relied upon by the Department, it is observed that there also it was specifically held that reimbursement towards shortage fuel/ diesel consumed in generator, electricity bills, telephone bills etc.,(reimbursable expense) are not to be included in the taxable value. Still the appeal in said case was dismissed but for the reason that there was no evidence produced as to what was the actual amount of the reimbursements and that the as the appellant was found to not to be in a position to claim such deduction for want of evidence. Hence the outcome of this decision is also found to be same as has been discussed above that prior the year 2015 the reimbursable expenses could not included in the taxable income. The demand pertains to the period prior the impugned amendment in section 67 Finance Act, 1944 hence has wrongly been applied retrospectively that the order under challenge is hereby set aside - Appeal allowed.

Summary

Issues Involved:
- Inclusion of reimbursable expenses in the taxable value under Section 67 of the Finance Act, 1994.

Summary:
The present appeal concerns the inclusion of wages, telephone bills, and electricity charges paid by an individual on behalf of a company in the taxable value under Section 67 of the Finance Act, 1994. The appellant provided services to a company and received payments for the same, categorized as "Business Auxiliary Service." The demand for recovery was based on this classification, leading to a dispute regarding the inclusion of reimbursable expenses in the taxable income. The appellant challenged the retrospective application of an amendment in Section 67, citing relevant legal precedents.

The Tribunal considered the arguments presented by both parties. It was acknowledged that the appellant managed company operations for a fixed consideration, including commission and incentives, and also received reimbursements for certain expenses. The key issue was whether these reimbursable expenses should be part of the taxable value. The Tribunal analyzed the legal position post the 2015 amendment to Section 67, emphasizing that unless expressly provided, statutory changes are prospective. Legal precedents, including a Supreme Court decision, clarified that prior to the amendment, reimbursable expenses were not considered taxable income.

Referring to specific cases and court decisions, the Tribunal highlighted that reimbursements for expenses like fuel, electricity, and telephone bills were not to be included in the taxable value before the 2015 amendment. The Tribunal concluded that the order under challenge incorrectly applied the law retrospectively, leading to the decision to set it aside and allow the appeal. The judgment emphasized that prior to the 2015 amendment, reimbursable expenses were not to be included in the taxable income, aligning with established legal interpretations.

In conclusion, the Tribunal set aside the order, ruling in favor of the appellant based on the legal principles and precedents discussed during the hearing.