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TMI Blog2015 (9) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner will have to establish and prove. That there is no customer of the Petitioner and therefore the Petitioner is not an agent of such customer and hence whatever amounts are collected are not in the nature of service charge, are all matters which raise essentially disputed questions of fact. - No merit in petition - Decided against assessee. - Writ Petition (L) No. 1110 of 2015 - - - Dated:- 1-9-2015 - S. C. Dharmadhikari And B. P. Colabawalia, JJ. For the Petitioner : Mr Vikram Nankani, Sr. Counsel with Mr Anupam Dighe and Mr Ajinkya Patil For the Respondent : Mr Pradeep S. Jetly with Mr Jitendra B. Mishra ORDER P. C. 1. By this Petition under Article 226 of the Constitution of India, what the Petitioner essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n explanation is called for from the Petitioner on the basis that the intelligence gathered indicated that some freight forwarders, shipping / airline agents, consolidation agents, customs house agents etc. are not paying service tax on the profit earned in selling of space for import / export to the importers / exporters on behalf of the Shipping lines / Airlines. The excess amount of freight as charged i.e. the difference between freight charged to the shippers and paid to the shipping companies is nothing but additional consideration received for the services provided to the shippers as an agent for the Shipping Lines / Airlines and are covered under the category 'Business Auxillary Services' as defined under section 65(105)(zzb) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. 4. It is not possible to agree with Mr Nankani for more than one reason. The Supreme Court in the case of Raza Textiles Ltd . (supra) was considering a case where the Income Tax Officer directed the Appellant - Raza Textiles Ltd. to pay a certain sum as tax on the sum of ₹ 2,00,000/- remitted by it as selling commission to an Indonesian party. The ITO rejected the contention of the appellant that the payee was not a nonresident firm. The Appellate Authority viz. the Assistant Commissioner, rejected the Appeal on the ground that it was not maintainable. He took the view that the Appeal can be entertained only if the precondition was satisfied viz. deduction of tax at source and payment to the credit of the Government. A Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Adjudicating Authority. The Petitioner will have to demonstrate that it is not rendering any services within the meaning of Finance Act 1994, much less the 'business support services'. It is the allegation in the show cause notice that the shipping lines / airlines are approached by the Petitioner - Assessee after getting inquiry from the clients and that is how the space or the slot is booked. That there is no such client who had approached the petitioner but the space is booked irrespective of any such inquiry from the client is a version of the Petitioner which the petitioner will have to establish and prove. That there is no customer of the Petitioner and therefore the Petitioner is not an agent of such customer and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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