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TMI Blog2023 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... s per SEBI Rules should not be included for the purpose of service tax. The impugned order is set aside - Appeal is allowed. - Service Tax Appeal No.250 of 2012 - A/10026/2023 - Dated:- 10-1-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri S J Vyas, Advocate for the Appellant Shri R P Parekh, Superintendent (AR) for the Respondent ORDER The appellant are a stock broking firm. This appeal has been filed against inclusion of NSDL CSDL charges in assessable value for the purpose of service tax by the appellant. 02. The dispute relates to includability of NSDL/CSDL charges paid by the appellant to the depositories. The same is recovered by the appellant from their clients. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from their customers/clients. The contention of the Advocates for the respective appellants is that these charges are collected separately and in accordance with various statutory Bodies Regulations and not retained by the stock brokers but deposited with the authorities concerned viz., Stock Exchanges, hence, such charges cannot form part of the taxable value as alleged by the Dept. The determination of the aforesaid question should not the same has been considered by way of judgments Including M/S LSE Securities Ltd (supra) 12.1 Matters before us fall within the periods before 2001 and after 2001 but before 2004. When service tax was introduced in the year 1994 to tax the service provided to investors by stock brokers in conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 specifically empowering the State to levy tax. When these are the principles laid down by Apex Court in the case of Slate of West Bengal v. Kesoram Industries Ltd. - (2004) 10 SCC 201, bringing a strange element to the ambit of tax shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended to be brought to the ambit of assessable value of service provided by stock broker. Charging section in a taxing statute is to be construed strictly. As is often said, there is no equity about tax. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute (Ref: Govt. of Andhra Pradesh V. P. Laxmi Devi - (2008) 4 SCC 720 - AIR 2008 SC 1640]. 13. Learned Counsels arguing the matter are correct to say that budget speech of the Hon ble Finance Minister made clear what was intended to be taxed in respect of service provided by stock broker. It was submission of the Learned Counsel Shri Mittal that insofar as stock brokers are concerned, brokerage or commission charged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject shall be made Liable without authority of law. To the extent authority is vested, only to that extent tax can be imposed. Commission or brokerage charged by stock brokers are only liable to tax by express provision of law. Any other exercise of authority beyond that shall make that fatal. 15. The correct assessable value of taxable service usually is the intrinsic value of the service provided since service commands that value only and that should only be taxed without any hypothetical rule of computation of value of taxable service under Section 67 of the Act. The other receipts a stock broker makes are irrelevant for determination of the assessable value of taxable service provided by him. Thus the test is whether a receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Limited 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 authorized to levy such charges under the Depositories Act, 1996. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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