2019 (3) TMI 875 - AT - Service Tax

Valuation - reimbursement of expenditure - Classification of services - Support Services of Business and Commerce or not - establishment of a subsidiary - period May 2006 to March 2011 - Held that - While the reimbursements given by service recipient to service provider which are in the nature of expenses made by the service provider in the capacity of pure agent which are not includable in the assessable value in terms of decision of Hon'ble Supreme Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. 2018 (3) TMI 357 - SUPREME COURT OF INDIA . However, what constitute reimbursements has been decided by larger bench of Tribunal in the case of Bhagwathy Traders v/s C.C.E. 2011 (8) TMI 430 - CESTAT, BANGALORE . The managing director as well as the employees are all employed by the service provider and are not employees of the service recipient. Thus, in no way does the liability to pay salaries of these people is of the subsidiary. The liability to pay salaries and emoluments to these persons is of the appellant. And, thus, the appellant cannot claim that the amounts received from the subsidiary are in the nature of reimbursements - The building belongs to the appellant and, therefore, the payment of rent, rates and taxes, labour charges, repair and maintenance, generator expenses and insurance premium are all liabilities of the appellant and not of the subsidiary. Thus, these payments are not in the nature of reimbursements. Amounts received of electricity and telephone - Held that - No tax can be demanded on the amounts of money paid by the subsidiary on count of electricity and telephone consumed on estimate basis. Similarly, for the activities done by the President, Executive Director and other Directors and employees on account of the subsidiary and payments made by the subsidiary to the appellant as a reimbursement of the travelling and other expenses would be in the nature of agencies function and excludable from the value of services. The matter is remanded to Original Authority for requantification.

Summary

Issues:
1. Liability to pay Service Tax on amounts received by the appellant from its subsidiary under the category of "Support Services of Business and Commerce".
2. Liability to pay Service Tax under the category of "Renting of Immovable Properties services" for maintenance charges received.
3. Justifiability of interest and penalties imposed under sections 75, 76, 77, and 78 of the Act.

Analysis:

Issue 1: Liability for Service Tax on "Support Services of Business and Commerce"
The appellant contended that the amounts received from its subsidiary were not liable for Service Tax as they were in the nature of reimbursements/sharing of costs, citing the decision of the Hon'ble Apex Court in a specific case. The appellant highlighted that the subsidiary was paying compensations for infrastructure and staff, which were shared expenses, not payments. The Tribunal examined the Memorandum of Understanding (MOU) between the parties, which detailed the sharing of expenses related to remuneration, benefits, rent, rates, taxes, and other costs. The Tribunal referred to a larger bench decision regarding what constitutes reimbursements and concluded that certain expenses, like rent, rates, taxes, and maintenance charges, were liabilities of the appellant, not the subsidiary, and therefore not eligible for exclusion as reimbursements.

Issue 2: Liability for Service Tax on "Renting of Immovable Properties services"
The Tribunal further analyzed the payments made for the usage of building, including rent, rates, taxes, and maintenance charges, reimbursed by the subsidiary to the appellant. It was established that these expenses were the liabilities of the appellant, as the building belonged to them. The Tribunal determined that such payments were not in the nature of reimbursements and thus not excluded from the Service Tax liability. However, for electricity and telephone expenses, where the consumption was independent, the Tribunal deemed the amounts paid by the subsidiary as reimbursement for agency functions and therefore excludable from the value of services.

Issue 3: Justifiability of Interest and Penalties
Regarding the interest and penalties imposed under sections 75, 76, 77, and 78 of the Act, the Tribunal modified the impugned order and remanded the matter to the Original Authority for requantification based on the findings related to the liabilities for Service Tax on specific categories and the exclusion of certain amounts as reimbursements. The Tribunal's decision aimed to ensure a fair assessment of the tax liabilities and penalties in light of the detailed analysis of the nature of payments and expenses involved in the case.

In conclusion, the Tribunal's judgment addressed the complexities of determining Service Tax liabilities on amounts received by the appellant from its subsidiary, emphasizing the distinction between shared expenses and reimbursements, and provided a detailed analysis of the specific categories under which the Service Tax was imposed. The decision aimed to uphold the principles of taxation law while ensuring a fair and accurate assessment of the tax obligations involved in the case.