2012 (7) TMI 227 - AT - Service Tax

Referral charges which was the consideration received by appellant from the banks for promoting and marketing their services Held that - Adjudicating authority found that agreements were entered into by the appellant with ICICI Bank, HDFC Bank and Oriental Insurance Company to provide them infrastructural facility by its dealers and authorized service centres to promote their business extending the credit facility and insurance service to the prospective customers identified by appellant - Facts and evidence aforesaid when tested on the touch stone of Section 65 (105) (zzb) read with Section 65 (19) of the Act that warrants taxation of the consideration received by the appellant from banks and insurance company as business auxiliary service provider and the service so provided becomes input service for banks to provide the output service of banking and financial service as well as insurance service by insurance company. Thus, the business auxiliary service provided by the appellant during the impugned period was liable to be taxed and that has rightly been done in adjudication without calling for interference in this appeal. Regarding penalty Held that - knowable breach of law made the appellant to suffer adjudication. Accordingly, no immunity from penalty is possible to be granted on the plea of tax compliances made which was found to be a case no payment of tax on the impugned services provided during the relevant period - penalty under Section 78 will meet the ends of justice and hence separate penalty under Section 76 is set aside - appeal is dismissed except for allowing the cum-tax benefit, and setting aside penalty under Section 76.

Summary

Issues:
1. Whether the services provided by the appellant to certain banks and an insurance company constitute Business Auxiliary Service under the Finance Act, 1994.
2. Whether the consideration received by the appellant from the banks and insurance company is subject to taxation.
3. Whether penalties under Sections 76 and 78 of the Act are applicable in this case.
4. Whether the appellant is entitled to cum-tax benefit.

Analysis:

Issue 1: Services Rendered by the Appellant
The primary issue revolved around determining whether the services provided by the appellant to ICICI Bank, HDFC Bank, and Oriental Insurance Company qualified as Business Auxiliary Service under Section 65 (zzb) read with Section 16 (19) of the Act. The appellant's role was to promote and market the services of the banks and insurance company, facilitating credit facilities, insurance services, and connecting prospective customers to the business chain. The agreements with the banks and insurance company involved promoting their services, identifying customers, and providing infrastructure support. The appellant acted as a promoter of the banks' and insurance company's businesses, making it clear that the services provided were indeed Business Auxiliary Services.

Issue 2: Taxation of Consideration Received
The consideration received by the appellant from the banks and insurance company, such as referral fees and reimbursement of advertisement costs, was found to be subject to taxation as Business Auxiliary Service. The agreements and modus operandi of the parties indicated a clear flow of consideration for the promotion and marketing services provided by the appellant. The consideration received was deemed as payment for the services rendered, forming the measure of value for taxable service provided by the appellant to the banks and insurance company.

Issue 3: Penalties under Sections 76 and 78
Regarding penalties, it was argued that the appellant had paid the entire tax before adjudication and should not be subject to penalties. However, the tribunal found that the appellant did not disclose a bona fide omission and had breached the law knowingly. Consequently, penalty under Section 76 was set aside, but penalty under Section 78 was upheld as it was deemed necessary to meet the ends of justice.

Issue 4: Cum-Tax Benefit
The appellant's claim for cum-tax benefit was considered valid, and it was allowed. The tax amount was to be recomputed by the original authority, and the penalty under Section 78 would change accordingly. The appellant was granted the option of paying 25% within a month as per the law.

In conclusion, the tribunal dismissed the appeal, except for allowing the cum-tax benefit and setting aside the penalty under Section 76.

This detailed analysis of the judgment showcases the intricacies of the legal issues involved and the tribunal's reasoning behind its decision.