2014 (9) TMI 745 - AT - Service Tax

Management Consultancy services - private placement of shares of the client - Held that - From the circular dated 9-7-2001 of the Board, the scope of the term merchant banking services has been explained in detail. From the said circular it can be seen that merchant banking services is any service provided in relation to issue management, either by making arrangement regarding selling, buying or subscribing securities as manager, consultant, advisor or rendering corporate advisory service in relation to such issue management. The activity undertaken by the appellant squarely falls within this definition. The appellant is also registered as a merchant banker under the SEBI regulations. Therefore, the confirmation of demand under the category of Management Consultancy Service is not sustainable under law. Since the transaction was undertaken in January, 2000 and the merchant banking activities rendered by body corporate came under the tax net w.e.f. August, 2002, prior to that period no service tax would be leviable on merchant banking activity rendered by a body corporate - Decided in favour of assessee.

Summary

Issues:
Classification of service as 'Management Consultancy Service' or 'Merchant Banking Service'; Liability to pay Service Tax; Time bar for demand.

Analysis:
1. Classification of Service: The appellant, a merchant banker, provided services for private placement of equity shares to a client. The department classified the service as 'Management Consultancy Service' and demanded Service Tax. The appellant argued that their services fall under 'Merchant Banking and other Financial Services' as per Section 65(12) of the Finance Act, 1994. They highlighted that prior to August 2002, only banking companies and NBFCs were liable for Service Tax on such services. The Ministry's clarification also supported this argument, stating that merchant banking services include activities related to issue management, which align with the appellant's services. The Tribunal agreed that the appellant's services were correctly classified as 'Merchant Banking Service,' and the demand under 'Management Consultancy Service' was unsustainable in law.

2. Liability to Pay Service Tax: The appellant contended that since the transaction occurred in January 2000 and merchant banking activities by 'body corporates' were brought under the tax net only from August 2002, no Service Tax was leviable before that date. The Tribunal concurred, emphasizing that prior to August 2002, there was no liability for Service Tax on merchant banking activities by 'body corporates.' Therefore, the demand for Service Tax on the appellant's services before August 2002 was deemed invalid.

3. Time Bar for Demand: The appellant argued that even if their services were considered 'Management Consultancy Service,' the demand would be time-barred as doubts existed regarding the scope of management consultancy services. The Tribunal acknowledged the clarification issued by the Board in June 2001, indicating uncertainties in defining management consultancy services. Considering the time elapsed and lack of malafide intentions by the appellant, the demand was considered time-barred.

4. Conclusion: The Tribunal allowed the appeal, ruling in favor of the appellant and disposing of the stay application. The impugned order classifying the appellant's services as 'Management Consultancy Service' was deemed unsustainable in law. Additionally, the demand for Service Tax before August 2002 on the appellant's merchant banking activities was rejected. The Tribunal's decision was based on the correct classification of services and the absence of liability for Service Tax before the specified date.