2018 (5) TMI 916 - AT - Service Tax

Classification of services - Online information data base access and/or retrieval service - Demand pertains to payment to various clients abroad and described as communication and system expenses which was sought to be classified as online information data base access and/or retrieval service taxable under section 65(105)(zh) of Finance Act, 1994 - Held that - the Tribunal in State Bank of India v. Commissioner of Service Tax 2014 (11) TMI 310 - CESTAT MUMBAI held that for taxation as provider of online information data base access and/or retrieval service refers to data that does not belong to the recipient of service. It was held in the case that mere access to server does not bring the activity within the purview of online information data base access and/or retrieval service. In the absence of any acceptable evidence that the assessee had access to data of others on the common server for which consideration was made over on which they are liable to tax under section 66A of Finance Act, 1994, the charging of tax on the respondent would not be correct in law. Appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against dropping of service tax recovery proceedings by Commissioner of Service Tax - Classification of expenses as 'online information data base access and/or retrieval service' - Liability under section 65(105)(zh) of Finance Act, 1994 - Contention regarding lack of clarity and evidence in show cause notice - Agreement with foreign companies for defraying expenses - Interpretation of 'online information data base access and/or retrieval service' - Taxation as provider of service from outside India - Connectivity services provided by foreign service providers - Ownership of data - Liability under section 66A of Finance Act, 1994 - Mere access to server not constituting taxable service - Contribution to cost of operating and maintaining common server.

Analysis:
The judgment involves an appeal against the dropping of service tax recovery proceedings initiated against a company for the payment of service tax amounting to ?1,40,53,000. The dispute revolves around the classification of expenses as 'online information data base access and/or retrieval service' under section 65(105)(zh) of the Finance Act, 1994. The show cause notice alleged that payments made by the company to its group companies abroad for software maintenance and data communication charges fall under the taxable category. The Revenue sought to fasten liability on the company based on certain rules and sections.

The appeal challenges the adjudicating authority's decision, pointing out the lack of clarity and evidence in the show cause notice. The company's defense is that the payments were made for defraying expenses related to common data servers and software among group companies, without receiving consideration for any service. The Tribunal referred to a previous judgment and emphasized that for taxation as a provider of 'online information data base access and/or retrieval service,' the data should not belong to the recipient of the service.

The Tribunal observed that the Revenue failed to refute certain crucial facts presented by the company, such as the location of service provider and recipient abroad, services rendered outside India, and payments made from abroad. It concluded that the services provided did not amount to service received in India from outside India. The Tribunal also analyzed the definition of the service in question and highlighted that the ownership of data lay with the foreign offices, not the service provider. The Tribunal rejected the Revenue's contention that the service was taxable under section 65(105)(zh).

The judgment further clarified that mere access to a server does not constitute 'online information data base access and/or retrieval service.' The company's explanation that group companies contributed to the cost of operating and maintaining the common server supported the decision of the Tribunal. Ultimately, due to the lack of evidence showing that the company accessed data of others on the common server for consideration, the Tribunal found no legal basis for taxing the company under section 66A of the Finance Act, 1994. Consequently, the appeal of the Revenue was dismissed.