9911796707
TMI Blog2020 (10) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... structuring options. The matter is no longer res integra. This matter has already been decided by this Tribunal in party s own case M/S. SITQ INDIA PVT. LTD. VERSUS C.S.T., DELHI [ 2018 (3) TMI 770 - CESTAT NEW DELHI] where it was held that Tribunal in the case of AMP capital Advisors Indian Pvt. Ltd. Vs. CST, Mumbai [2015 (6) TMI 122 - CESTAT MUMBAI], observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service. The services provided by the appellant is classifiable under Management, Business Consultancy Services , and, therefore, the demand of service tax is not sustainable - Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 03 January, 2017 decided both the Show cause notices. The demand raised in the first Show cause notice covering the period 25 October, 2007 to 31 March, 2011, was dropped by the Adjudicating Authority on the ground of being time barred. The demand made in the second show cause notice for the period 2011-2012 for ₹ 1,35,11,377/- was confirmed in the impugned Order-in-Original dated 03 January, 2017. The penalty under section 76 and section 77 was also confirmed by the Adjudicating Authority. The main ground on which the service tax demand was confirmed by the Adjudicating Authority is as follows: 48.(a) It is undisputed fact that the Noticee has provided their services in terms of the Agreement dated 01.04.2010 entered into by them with their holding company namely M/s. SITQ Maruitius Advisory Services (hereinafter referred to as 'Advisor'). The relevant clauses of the said agreement have also been brought out in the SCN. On carefully sifting through the said agreement tilted as "Advisory Service Agreement" it can be seen that the services provided or to be provided were prominently to identify potential acquisition targets and investment opportunities related to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant duly filed ST 3 return for the financial year 2011-2012 for which the demand pertains. On the basis of this contention, the advocate contended that the adoption of best judgement method in determining the service receipts and consequent confirmation of demand is legally not sustainable. In support of this claim, the learned advocate relied on the decision in Carisberg India Pvt Ltd. vs Commissioner of Service Tax, Delhi reported in [2016 (42) STR 55 (Tri-Del)], wherein the Tribunal held that non-submission of basis or reasons for resorting to best judgement assessment is not justifiable under law. The learned advocate also relied on Tribunal.s decision in Coca Cola (I) Pvt. Ltd. vs Commissioner of Service Tax, Delhi reported in [2015 (40) STR 547 (Tri-Del)]. 7. The learned advocate has also vehemently contested that the service provided by the appellant is not covered under taxable category of 'Real Estate Agent Service' and the service provided by the appellant is likely to be classifiable under 'Management, Business Consultancy Services'. 8. It has further been submitted that the impugned order is erroneous in stating that the IAS (Investment Advisory Service) provided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advisory services provided by the appellant are not restricted to advising in respect of investments. It is wider in scope and also includes general economic and market conditions, tax environment etc. The appellant also advises on various funding, investment structuring options. 15. The learned Advocate argued that while passing the impugned order, the Department has relied completely on the nomenclature used in the Advisory Service Agreement between SITQ and SIT Mauritius and Service Agreement between SITQ and third party advisors, without looking to the true nature of the service. The true nature of the service is apparent from the reports issued by the appellant and submitted in the course of audit proceedings. It is submitted that it is clear from the reports that the Appellant advises on various aspects in relation to the acquisition of the Companies wherein real estate is just one part of the report. A perusal of the reports clearly establishes that appellant is advising on various aspects, wherein real estate is just one part. In this regard, reliance was placed on Das Innovators Pvt. Ltd. vs Commissioner of Service Tax, New Delhi reported in [2017-TIOL-960-CESTAT DEL] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by overseas clients and advise them with respect of investment opportunities. It is seen from clause (i) to (vi) of Para 2 (c) of the said agreement that the appellants would render the service to the overseas client as advisory in respect of investment opportunity in Indian companies. The job of the appellant is limited to research and analysis with respect to investments at the direction of the overseas clients and also to advise them with respect to investment opportunities. 8. We find that the definition of MBCS includes the service of any person, who renders any advice, consultancy or technical assistance in relation to financial management. The contention of the ld. Counsel for the appellants is that the investment as mentioned in the agreement would be only in the shares of the company and the company is separated from its shareholders. Hence, it is contended that the appellant had rendered the services under the category of MBCS. 9. The lower appellate authority observed that the appellants were in fact, assisting their foreign clients for making investment in the Indian real estate companies and therefore, they were in fact, catering the "RECS" to their foreign c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are provided to Australia based firm it is that firm, M/s. AMP Capital (Australia) who is the sole recipient of. the services and on the basis of these services, M/s. AMP Capital (Australia) is further providing services to the foreign based companies. That shows, that the services provided by the appellant is consumed by M/s. AMP Capital (Australia), Australia for providing his output services to foreign based companies. Under these facts there is no dispute that the services provided by the appellant are indeed used and consumed by M/s. AMP Capital (Australia) in Australia. Therefore, the services are used outside India. 6.1 On the identical set of facts, this Tribunal in the following cases have held as under : (i) In the case of Amha Research (India) Pvt. Ltd.: "3. On going through the records and after considering the submissions of both sides, we find that in this case, the appellant is a subsidiary of M/s. Amba Holdings Inc. The refund claim has been denied on the ground that the services have been entirely utilized in India. According to the agreements, we find that the buyer namely M/s. Amba Holdings Inc. is engaged in the business of providing services in investm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used outside India for their benefit. Further, I find that the issue came up before this Tribunal in the case of Paul Merchants Ltd. (supra) and in that case also this Tribunal has held that if the services recipient is located outside India and the same has been utilized outride India, therefore it is a case of export of service. Further in the case of Vodafone Essar Cellular Ltd. - 2013 (31) S.T.R. 738 this Tribunal held that telecom services provided to inbound roaming international consumers would qualify as export of service. In the said case, Vodafone provided telecom services in India to international in-bound roamers registered with foreign telecom network operators but located in India at the time of providing of the said services. In that case this Tribunal held that Vodafone rendered the telecom service, in the context of international roaming, the benefit accrued to the foreign telecom service provider, though the actual consumer was in India but in that case it was held that it is a support service. In the instant case, the respondent has provided investment advisory services to GPC who is located outside India and having no office in India. In that case it is held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
