2017 (10) TMI 444 - AT - Service Tax

Determination of tax liability - First grievance of the appellant is that without considering reconciliation statement filed by appellant being considered ld. Adjudicating Authority, determined the liability arbitrarily - Held that - revenue should have appreciated the figures submitted by the appellant and made reconciliation to arrive at the appropriate base for taxation. That not being done, an exercise is required to be made by the learned Authority to reach to a rational conclusion to tax the required amount to be taxable - Ld. Adjudicating Authority should determine the liability on the basis of the consideration received, providing taxable service as is corroborated by the invoices. Scrutiny of the reconciliation statement filed by appellant deserves consideration. Appellant shall cooperate with the authority to explain on the reconciliation statement for determination of proper liability - matter is remanded to the Adjudicating Authority to do the needful with the direction above and pass a reasoned and speaking order following due process of justice. Liability of tax in deposit - law requires that it is the receipt or the receivable amount in respect of provision of taxable service is only to be taxe - Held that - ld. Adjudicating Authority shall scrutinize the receipts of the appellant from the services provided by the appellant and on examination of the materials demonstrating considerations if any received, in respect of provision of taxable service, that shall be the basis to compute the tax liability, following due process of justice. The third grievance of the appellant is that in terms of the agreement the receipts made by appellant were for providing its infrastructure for use. There was no franchisee agreement entered into between the appellant and the service recipient. When the appellant came to know that the service provided in respect of renting of immovable property is taxable, it paid the service tax due to the Government. But Revenue says that the agreement was for franchise service for which appropriate adjudication has been made - There is no ingredient of any franchise agreement when such document is examined. Ld. Authority has extracted in the show cause notice the definition of franchise agreements - Since appellant says that it has discharged the service tax under the category of renting of removable property for the period stated in the show cause notice dated 21/10/2009 that needs verification by ld. Adjudicating Authority. Taxation of reimbursement of staff salary - Held that - Reading of the adjudication order and the object of the public sector appellant which is engaged in public warehousing it does not appeal that it has been engaged in such activity. Therefore, levy of demand on such allegation is inconceivable. Accordingly, there shall be no demand on this count. Levy of service tax - provision of taxable service under the taxing entry of business support service - Held that - Since the space was rented out by the appellant for commercial purpose, that was a case of renting of immovable property which became taxable w.e.f 01.06.2007. Tax has been paid from that date. Definition of Business Support Service including provision of infrastructural service was not applicable and therefore service tax was not payable thereon for the impugned period i.e., prior to 01.06.2007. Ld. Adjudicating Authority has to examine such averments of learned Advocate in readjudication proceeding. Appeal allowed in part and part matter on remand.

Summary

Issues Involved:
1. Dispute regarding determination of liability on various service tax issues.

Analysis:
1. The appellant raised a grievance that the liability was determined arbitrarily without considering the reconciliation statement filed by them. The appellant argued that the tax should be imposed based on the consideration received for providing taxable services, not merely on the figures in the balance sheet. The Tribunal directed the Adjudicating Authority to reexamine the reconciliation statement and determine the liability based on the actual receipts for taxable services provided, following due process of justice.

2. The appellant contended that deposits received were not liable to service tax, as only the gross value of consideration for taxable services should be taxed. They explained that deposits were security received from service recipients and should not be taxed unless they were appropriated against the billed amount for services provided. The Tribunal directed the Adjudicating Authority to scrutinize the receipts from services provided to determine the tax liability accurately.

3. The appellant disputed the categorization of receipts as franchise service, arguing that the agreement was for infrastructure use, not a franchise agreement. The Tribunal found that the agreement did not exhibit the essential elements of a franchise agreement, and directed the Adjudicating Authority to verify the payment of service tax under the correct category.

4. Regarding the taxation of reimbursement of staff salary, the appellant argued that it was not related to franchise agreements but to providing infrastructure. The Tribunal agreed that there was no evidence of manpower recruitment or supply agency services, and no tax liability existed in this regard.

5. The appellant contested the levy of service tax on provision of table space, claiming it was a case of renting immovable property, not business support service. The Tribunal directed the Adjudicating Authority to reexamine this issue and pass a reasoned order following due process of justice.

6. The Tribunal partially allowed the appeal based on the above aspects and remanded the matter to the Adjudicating Authority for further examination. No penalty was imposed due to confusion in taxing entries and the appellant's lack of intention to cause evasion.