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TMI Blog2019 (11) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Officer, duly empowered by the Central Government in that behalf, to summon persons to give evidence and produce documents in an on-going enquiry. In the present case, enquiry is admittedly on-going in regard to the taxability of the commission received by the petitioner. The apprehension of the petitioner appears to be that the respondent has pre-determined the issue and is hence merely seeking to collate requisite documents to enable the issuance of a show cause notice without application of mind as to whether such show cause notice is actually called for or not. In the present case, the question as to whether the petitioner is actually rendering services to the finance companies is one of fact. One cannot deny that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stocks a large number of vehicles that are offered to sale to prospective customers. After selection of the vehicle for purchase, the customers are guided by the personnel of the petitioner to available options for finance that are offered at the site by representatives of finance companies. 2. The Writ Petitioner in its affidavit states that 'it is with a view to cover such segment of customers i.e., 'salaried employees or businessmen' that the firm encourages them to approach the finance companies' . Furthermore, the petitioner also encourages such availment of finance with a view to improving its own business as evidently the availability of finance would improve the possibility of purchase and in turn, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activity engaged in does not constitute taxable service. 4. The petitioner has been resisting summons received from the respondent/Service Tax Authorities calling upon it to appear and furnish details in connection with the on going enquiry for subjecting the amount of commission received, to service tax. Hence the present Writ Petition challenging summons dated 28.09.2010 calling for the attendance of the petitioner along with TDS statements for the previous five years, Credit/Debit notes received from finance company/TVS Motor Company and free service details. 5. The petitioner relies upon the decisions of the Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal in the case of M/s.Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n persons to give evidence and produce documents in an on-going enquiry. 8. In the present case, enquiry is admittedly on-going in regard to the taxability of the commission received by the petitioner. The apprehension of the petitioner appears to be that the respondent has pre-determined the issue and is hence merely seeking to collate requisite documents to enable the issuance of a show cause notice without application of mind as to whether such show cause notice is actually called for or not. 9. The relevant statutory provision in terms of which the commission received is sought to be brought to tax is Section 65(19) of the Act dealing with ' business auxiliary service ', reading as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) deals with goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; (b) excisable goods has the meaning assigned to it in clause (d) of section 2 of the Central Excise Act, 1944(1 of 1944); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer in vehicles would constitute 'business auxiliary services' for the purpose of taxability, has opined that the question would involve appreciation of facts on a case to case basis. 12. At paragraph 21, the Bench observes that where mere space was provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of a dealer and consideration is received for that singular activity, such consideration may perhaps constitute rent for the provision of space and associated amenities and may not amount to business auxiliary service . If, on the other hand, the transactional documents and other evidences on record indicate substantial activity falling within th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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