2013 (10) TMI 203 - AT - Service Tax

Hire/purchase and lease transactions - banking and financial services - service tax on interest income disclosed under the head Leasing Equipment Finance Income - Held that - Prima facie, the adjudicating authority appears to have clearly erred in failing to comprehend that the taxable service during the relevant period (prior to 16.8.02) under Section 65(105)(zm) is specified to being a service provided or to be provided to a customer by a banking company or a financial company including a non-banking financial company in relation to banking and other financial services. The entity liable to service tax levy under Section 65 (105) (zm) is therefore a banking company or financial company including a non-banking financial company. Where however banking and other financial services as defined in Section 65(10) of the Act are provided by an entity which does not answer the description of the enumerated entities which alone are liable to tax for having provided the taxable service, there would be no liability. For tax liability to enure there should thus be a confluence between the specified entity and the specified service. This connect which is integral to the liability to tax is prima facie absent in the present case as the petitioner s claim to not being either a banking company, a financial company or even a non-banking financial company during the relevant period i.e. prior to 16.8.02 , is not disputed - stay granted.

Summary

Issues:
Waiver of pre-deposit and stay of further proceedings for realization of adjudicated liability.

Analysis:
The case involved the appellant, a body corporate engaged in manufacturing photocopying machines and leasing equipment, facing a show cause notice for alleged non-payment of service tax on interest income disclosed under 'Leasing Equipment Finance Income' in balance sheets for the periods 2002-03 and 2004-05. The core contention of the appellant was that the taxable value in question pertained to amounts received on equipment leasing services provided before 16.8.2002, and thus, did not fall under the taxable service of banking and other financial services as defined in the relevant provisions of the Finance Act 1994. The adjudicating authority, however, rejected this claim, asserting that financial leasing services, including equipment leasing and hire-purchase by a body corporate, constituted banking and other financial services.

Upon analysis, the appellate tribunal found that the adjudicating authority erred in failing to comprehend the specific provisions governing the taxable service during the relevant period. It was noted that the liability to pay service tax under Section 65(105)(zm) pertained to services provided by banking companies, financial companies, or non-banking financial companies in relation to banking and other financial services. Since the appellant did not fall under any of these specified categories during the relevant period, the tribunal concluded that there was a lack of confluence between the specified entity and the specified service, rendering the tax liability prima facie absent in this case.

Based on the above analysis, the tribunal granted the appellant's request for waiver of pre-deposit in full and stayed all further proceedings related to the adjudicated liability pending the disposal of the appeal. The tribunal's decision was grounded in the understanding that the appellant, not meeting the criteria of a banking company, financial company, or non-banking financial company during the relevant period, should not be held liable for service tax under the provisions in question.