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TMI Blog2021 (9) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent ORDER The issue involved in this case is whether NSE/BSE transaction charges and SEBI turnover fees paid by the stock brokers to the concerned agencies and recovered from their client is liable to service tax under the category of stock broker service. 2. None appeared for the appellant. We have heard Learned AR and perused the record. We find that this issue is no longer res- integra as this tribunal decided this issue vide final order No A/12707-12708/2018 dated 05.12.2018 in the case of M/s Kunvarji Finstock Pvt Ltd wherein considering various judgments following order was passed. Brief facts of the case are that the appellant are engaged in providing Service under the category of Stock Broker as defined under Section 69 of the Finance Act, 1994 (herein after referred to as the Act ) and hold a valid Service Tax Registration No.AAACK8760EST001. It was observed that the appellants had not paid Service Tax on certain amount received on account of their services, such as NSE/BSE transaction charges and SEBI turnover fees which forms an integral part on their services viz. Stock Broker Service. The case of the department is that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.As far as the issue relating to levy of service tax on turnover charges is concerned, this Tribunal following the judgment in LSE Securities Limited case (Supra) decided the issue in favour of the assessee. Hence, on the said issue Revenues Appeal is devoid of merit. On the issue of inclusion of Computer Linkage Charges collected from the sub broker and paid to the Commodity Exchange in the value of Forward Contract Service Charges, we are of the opinion that, the said issue is no more res-integra, in view of the principle laid down by the Honble Supreme Court in Intercontinental Consultants and Technocrats Pvt. Ltd.s case (Supra). Their Lordships have observed as follows. 29) In the present case, the aforesaid view gets strengthened from the manner in which the Legislature itself acted. Realising that Section 67, dealing with valuation of taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) which deals with 'consideration' is suitably amended to include reimbursable expenditure or cost incurred by the service provider and charged, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [(1870) LR 6 QB 1], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 29. The obvious basis of the principle against retrospectives is the principle of fairness , which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. The judicial opinion of binding authority flowing from several pronouncements of the Hon ble Supreme Court has settled these principles : (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. 12.3 There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the Legislature s failure to express itself clearly. It is well settled that power to tax cannot be inferred by implication; there must be a charging section specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that insofar as stock brokers are concerned, brokerage or commission charged by them only from value of taxable service and that was intended to be taxed by the budget of 1994-95. This was the proposal in Part B of the Budget presented to the Parliament on 28th February, 1994. Reading of the legislative intent from the budget speech and the express legislation in Section 67 of the Act does not leave any room for implication of ambiguity. Therefore, express grant of the statute no way leaves scope for implication to make the statutory grant ineffective. Law being well settled that there is no intendment in taxation and the State has to discharge its burden of proof to bring the subject into tax, there is no scope to bring any other element of receipt other than brokerage or commission to the scope of assessable value in respect of service provided by stock brokers. 14. Normally value? is derived from the price and value is the function of the price. This is conceptual meaning of value. Section 67 is the sole repository of law governing value of taxable service provided by the stock broker. Any charge on the non-includible elements other than brokerage or commission will resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, aforesaid charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service. On merit, all the appellants succeed on the fundamental principles of taxation. Therefore, other contentions on merit made in respective appeals are not considered in this order. 10. Similar view has been expressed recently by the Tribunal in M/s Consortium Securities Pvt Ltd s case (supra). We do not find any reason to deviate from the ratio laid down in the aforesaid judgments of this Tribunal. We are also of the view that the allegation of the department that the demat charges collected by the brokers are banking and financial service, hence taxable, also devoid of merit in as much such charges are collected by the Appellant and paid to the depository participants viz. CDSL/NSDL who are authorised to levy such charges under the Depositories Act,1996. Thus, in view of the aforesaid precedent, we do not find merit in impugned orders and accordingly set aside. The appeals are allowed with consequential relief, if any, as per law. From the reading of the above judgments it is cleared that the identical issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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