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TMI Blog2024 (6) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... tels having tariff value of less than Rs. 1000 per day or cases where the hotels are located in the State of Jammu Kashmir - statement for subsequent period can be issued for demand under section 73A or under section 73(1A) of the Finance Act - invocation of extended period of limitation for recovery of tax under the proviso to section 73(1) of the Finance Act and under section 73A of the Finance Act - imposing penalty on the appellant and its officials. HELD THAT:- The factual position and the issues in the decision of the Tribunal in M/S MAKE MY TRIP (INDIA) PRIVATE LIMITED, SHRI M.K. PALLAI, VICE PRESIDENT (FINANCE) AND SHRI MOHIT KABRA, GROUP CFO DIRECTOR M/S MAKEMY TRIP (INDIA) PRIVATE LIMITED VERSUS ADDITIONAL DIRECTOR GENERAL, DIRECTORATE GENERAL OF GST INTELLIGENCE, NEW DELHI [ 2024 (1) TMI 681 - CESTAT NEW DELHI] and the present appeals are identical where it was held that as follows: '(i) That renting of hotel accommodation service can only be provided by a hotel. Make My Trip, did not qualify as a hotel and could, therefore, not render the service of renting of rooms in a hotel; (ii) That Make My Trip merely acted as a facilitator between the customer and the hotel p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (iv) Booking of cabs; and (v) Booking of train tickets and bus tickets. 5. The issue involved in the appeals are: (i) Whether in the facts and circumstances of the case, the appellant can be said to be providing short-term accommodation service and not tour operator service; (ii) Whether the appellant was entitled, as a tour operator, for abatement under notification dated 20.06.2012 (from 01.07.2012) in respect of service of tour operator and claim abatement of 90% on gross amount charged; (iii) Whether the department is right in invoking section 73A of the Finance Act, 1994 [the Finance Act ] and requiring the appellant to pay the alleged taxes collected from the customers and passed on to the hotels for their payment of tax under hotel accommodation services; (iv) Whether the provisions of section 73 and section 73A of the Finance Act can be simultaneously invoked; (v) Whether the department is right in demanding amount from the appellant under section 73A of the Finance Act in respect of cases where the customers stay in hotels having tariff value of less than Rs. 1000 per day or cases where the hotels are located in the State of Jammu Kashmir; (vi) Whether the statement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice that was issued to the appellant in the decided matter in Make My Trip alleged that since Make My Trip was purchasing rooms from hotels, which were rented out to its customers, it would be rendering short term accommodation service as defined under section 65(105)(zzzzw) of the Finance Act for the period prior to 01.07.2012 and renting of hotel accommodation service under section 66E(a) of the Finance Act for the period thereafter; that Make My Trip could not qualify as a tour operator and had availed benefit of abatement of tax incorrectly under the relevant notifications; and that Make My Trip had recovered an amount as service tax which was not paid to the Government and, therefore, such amount was liable to be recovered under section 73A of the Finance Act. 10. The Tribunal, in aforesaid decision held as follows: (i) That renting of hotel accommodation service can only be provided by a hotel. Make My Trip, did not qualify as a hotel and could, therefore, not render the service of renting of rooms in a hotel; (ii) That Make My Trip merely acted as a facilitator between the customer and the hotel permitting the booking of hotel rooms. For this, Make My Trip received commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.6.2017. Allegations in the show cause notice Make My Trip has purchased the inventory of rooms from hotels, which have been rented out by Make My Trip to its customers. Make My Trip is not acting as an agent of the hotels as the inventory of rooms has been purchased by it. Make My Trip and the hotels were operating on principal to principal basis. The hotels do not book the gross amount charged from the customers as an income. Make My Trip has suffered losses in some cases while renting the hotel rooms. Hence, it cannot be treated as agent. Make My Trip is responsible for grievance redressal of the customers who have booked rooms through it. Make My Trip is liable to pay tax on the amount collected from the customers under the category of short-term accommodation service defined under section 65(105)(zzzzw) of the Finance Act (for the period prior to 1.7.2012) and under section 66B of the Finance Act (after 1.7.2012). Make My Trip is not a tour operator as it does not plan any tour for the standalone hotel room booking and thus, not entitled to abatement of 90% under notification dated 1.3.2006 (till 30.6.2012) and under notification dated 20.06.2012 (from 1.7.2012). Make My Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn and not as per the express authorization of the hotels. Since, the hotels are not aware of the exact value of services, Make My Trip cannot be called as an intermediary. iii. Make My Trip is not a commission agent as instead of earning commission, Make My Trip has also suffered losses while selling the rooms purchased from hotels. iv. Make My Trip is liable to address the grievances of its customers regarding the accommodation offered by Make My Trip. v. Make My Trip is not entitled to avail the abatement of 90% under notification dated 01.03.2006 and notification dated 20.06.2012 as tour operator as it does not plan or conduct any tours in respect of its standalone hotel bookings and has failed to submit any defense against paragraph 4.8 of the show cause notice which specifies three conditions to be fulfilled for service to qualify as tour operator service . vi. Make My Trip has collected amounts from the customers as representing service tax on hotel accommodation service and service tax assessment is done under tour operator service. Thus, the amount collected by Make My Trip is in excess of the service tax paid by it and thus, both the conditions stipulated under section 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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