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TMI Blog2019 (8) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... and in fact, to have more business. The said service is, therefore, in relation to the business of bookie and thus definitely amounts to Infrastructural Support being provided to the booker by the appellant which is well covered under Explanation to Section 65(104c) of Finance Act defining BSS. Charges received by the appellant from the bookies in the name of commission, but for providing Inter-venue Betting Services, Auditing Services, live telecast services and for the catering services being available to the bookmakers - demand of service tax - HELD THAT:- The bookmaker can run his business if and only if the club is able to provide him the aforementioned services. This is sufficient for us to hold that the services are nothing, but the services are provided by appellants in relation to the business of the bookmakers. The admission that accounting facility has also been provided by the appellant to the book-makers corroborates the aforesaid opinion. The arguments of the appellant that auditors were provided only to discharge their statutory liability of maintaining the proper accounts and the charges collected from the bookmakers against the auditors fee were handed over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for the post-negative period as well. The demand qua receiving stall fee and commission from the bookies for services in relation to business including infrastructural support as consideration received for providing Business Support Service to the bookmakers and qua receiving charges from caterers to roam in the appellant s premises as consideration for providing Renting of Immovable Property Service has rightly been confirmed - there is no infirmity in the order under challenge. Appeal dismissed. - ST/3376/2012-DB, 20266/2014-DB and 30352/2016-DB - Final Order Nos. A/30734-30736/2019 - Dated:- 9-8-2019 - Shri P. Venkata Subba Rao, Member (T) and Ms. Rachna Gupta, Member (J) Shri Y. Sreenivasa Reddy, Advocate, for the Appellant. Shri C. Mallikarjun Reddy, Authorised Representative, for the Respondent. ORDER This order disposes of three appeals together as the issue being common to all three of these appeals. Orders-in-Original, as detailed below have been challenged in the impugned appeals vide which the demands made against the appellant under the taxable service of Business Support Service (BSS) and Renting of Immovable Property Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiving a share of income; and (vi) have permitted the Book makers to accept bets from the customers on which the club was receiving a share of income. 5. On being pointed out, service tax liability qua the services at Sl. Nos. (i) (ii), as above, was discharged by the appellant though under protest, but the liability qua the remaining services has not been discharged. Resultantly, the respective show cause notices as mentioned above for the above-mentioned respective periods were issued to the appellants proposing the respective demands along with the interest at the appropriate rate and the proportionate penalties. The said demands were confirmed by the adjudicating authority below along with the interest at appropriate rate and the proportionate penalties. Being aggrieved the appellant is before this Tribunal. 6. We have heard Shri Y. Srinivas Reddy, Ld. Advocate for the appellant and Mr. C. Mallikarjun Reddy, Ld. DR for the Department. 7. It is submitted on behalf of the appellants that the show cause notice has not appropriately considered the nature of activity, the prospective of the same, documents on record, the scope of activities undertaken and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor of the appellant may get the details of the betting amount and the tax collected by the bookies. However, the nominal amount collected from the bookies as audit charges are paid to the auditor. Since the appellant is not retaining any amount from these audit charges, the activity of auditing cannot be called as Business Support Service. Otherwise also, the entire amount collected is in lieu of the stall being provided to the appellant, the stall fee cannot be called as an amount charged for rendering Business Support Service. 9. With respect to the income with respect to live telecast of races, it is submitted that appellant allows other race clubs to give live telecast of the races conducted at the appellant s place for which they get share of income from the other clubs and vice versa the appellants pays such share of income to such other club whose race is agreed to be telecasted at the appellants club (inter-venue betting). In this transaction, no service is provided to the bookies, hence, the demand is alleged to wrongly been confirmed under Business Support Services. 10. With respect to the amounts received towards royalty from the caterers, the same is denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst providing the Renting of Immovable Property Service to the said caterer. As such, there is no infirmity in the order under challenge. The appeal is accordingly, prayed to be dismissed. 14. After hearing both the parties and perusing the entire record of the impugned appeals, we are of the opinion as follows :- The appellants are receiving the amount from their licensed bookies and the caterers on the following counts :- (1) Book-makers stall fee (2) Commission from book-makers : (i) For inter-venue betting (ii) Consideration for live telecast, and (3) Royalty from caterers. 15. The first two counts are alleged to be the Business Support Services being provided by the appellant to their licensed bookies and the third one is held to be the consideration in lieu of providing Renting of Immovable Property Services to the caterer. To adjudicate whether these have rightly been classified by the adjudicating authority or not, we first need to look into the definitions of Business Support Service under Section 65(104c) of the Finance Act, 1994 and Renting of Immovable Property under Section 65(90a) of the Finance Act, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable property for use in the course or furtherance of business or commerce. The period involved in three of these appeals is pre- as well as post-negative list era. 17. Coming to the pre-negative list period first, we adjudicate as follows :- Definition of Business Support Service, as above, makes it abundantly clear that any service which is in relation to business or commerce and helps in enhancement of business amounts to Business Support Service. Even the infrastructural support provided to run a business is a Business Support Service. In the present case from the licence as given by the appellant to the bookmaker, it is abundantly clear that the appellant while providing an enclosure/stall in the appellant's race club to the bookies is providing as space to him to run his business of booking bets from the punters available within the premises of the appellants Club. The bet has to be on the Races being conducted by the club in its premises. Hence, providing a space in the club to such a bookmaker is nothing but a facility being given for him to properly run his business and in fact, to have more business. The said service is, therefore, in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors were provided only to discharge their statutory liability of maintaining the proper accounts and the charges collected from the bookmakers against the auditors fee were handed over as such to the auditors does not appear reasonable, as there is nothing on record that in addition to stall fee and the commission amount, as mentioned in the impugned license any other amount has been paid by the bookmaker to the appellant. All these activities when taken together are covered under the definition of Business Support Service, as mentioned above. Hence, we do not find any infirmity in the order of the adjudicating authority below while confirming these demands. 20. The decision of M/s. Royal Western India Turf Club Ltd. (supra) again is not applicable to the present case because in that case the demand for the live telecast facility was alleged to be a Broadcasting service, which came into tax-net only in the year 2010 and the demand in that case was pre-2010. With respect to this service to be an Intellectual Property Right Service, the Tribunal has held that the demand for such service can be raised only when there is a transfer of Intellectual Property Rights by the holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crockery or in the form of serving boys. Hence, the service provided by the appellant is merely Renting of Immovable Property Service. In Royal Western India Turf Club Ltd. case, the said service was alleged and confirmed by the adjudicating authorities as Business Support Service, but was held to be Renting of Immovable Property Service. The present show cause notice has proposed the demand for service provided to the caterer as Renting of Immovable Property Service only. Hence, irrespective the facts of the present case and Royal Western India Turf Club Ltd. case are similar but the proposal in show cause notice for the M/s. Royal Western India Turf Club Ltd. (supra) case and the present case is altogether different. Hence, the adjudication is not completely binding on the facts and circumstances of the present case. 23. For the period which is post-negative list era i.e. beyond the year 2012. Value of all the services other than those services specified in negative list, provided or agreed to be provided in the taxable territory by one person to another shall be levied to tax, as is emphasized in Section 66B, which was introduced with Finance Act, 2012. Hence, for the post- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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