2013 (8) TMI 638 - AT - Service Tax

Import of service - permanent establishment - Section 66A(2) - appellant was provided design and consultancy service - head office is at Canada and in India they have set up only a project office - Held that - The appellant have provided the service to itself - project office of the appellant in India set up for implementation of the project in terms of agreement between the Government of Uttranchal and the Canada cannot be called the permanent establishment - project office is not doing any work other than the work relating to the project and would get wound up once the project is completed - the same covered branch or agency of a foreign based company set up in India to carry out its business on long term basis does not cover the project office temporarily set up in India only for implementation of a particular project. Stay application prima-facie case in the favour of assessee waived the pre deposit of service tax- stay granted.

Summary

Issues:

1. Whether the project office in India should be treated as a separate entity liable to pay service tax.
2. Whether the project office of the appellant company in India can be considered a permanent establishment.
3. Whether the provisions of Section 66A of the Finance Act, 1994 are applicable in this case.

Analysis:

Issue 1:
The main contention revolved around whether the project office in India should be considered a separate entity liable to pay service tax. The appellant argued that the project office is an extension of the head office in Canada and that the service provided by the head office to the project office should not be taxable. They cited precedents where services rendered to oneself were not taxable. On the other hand, the department claimed that the project office had a separate identity from the head office and thus should pay service tax on services received. The Tribunal noted the facts that the project office was established solely for a specific project and that it would cease to exist after project completion. The Tribunal held that the project office cannot be treated as a separate entity and the service provided by the appellant to itself should not be taxable.

Issue 2:
The question of whether the project office could be considered a permanent establishment was crucial. Section 66A (2) of the Finance Act, 1994 states that when a person operates through permanent establishments in different countries, they are treated as separate entities. The Tribunal analyzed the nature of the project office and concluded that it did not qualify as a permanent establishment under the given circumstances. The Tribunal explained that a permanent establishment typically involves long-term business operations, unlike the temporary setup of the project office for a specific project.

Issue 3:
The applicability of Section 66A of the Finance Act, 1994 was a significant aspect of the case. The Tribunal interpreted the provision and determined that it did not apply to the situation at hand. They reasoned that since the project office was not a permanent establishment and was set up solely for project implementation, the provisions of Section 66A were not applicable. Consequently, the Tribunal found in favor of the appellant, stating that they had a prima facie case and waived the requirement of pre-deposit for the service tax demand, interest, and penalty. The recovery of these amounts was stayed pending the appeal's disposal.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the stay application and emphasizing that the project office in India should not be treated as a separate entity liable to pay service tax. The judgment highlighted the specific circumstances of the case, the interpretation of relevant legal provisions, and the precedents cited to support the decision.