Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2491

Whether arranging loans for customers from financial institutions leviable to service tax under BAS?

Case:- COMMR. OF C. EX., CHANDIGARH VERSUS PIONEER FINANCIAL SERVICES
 
Citation:- 2014 (36) S.T.R. 117 (Tri. - Del.)


Brief facts:- Brief facts of the case are that M/s. Pioneer Financial Services (hereinafter referred to as Respondents) are registered with Department for providing Business Auxiliary Service with effect from 3-12-2004. They did not file any Service Tax Return during the period 12/2004 to 3/2007. Respondents are arranging loans for the customers from various financial institutions like LIC Housing, IDBI bank and HDFC bank and promoting and marketing the services of these financial institutions. Department felt that this activity of the Respondents is covered under Business Auxiliary Service as defined under Section 65(19) of the Finance Act. Accordingly a Show Cause Notice dated 14-8-2008 was issued to the Respondents demanding Service Tax with interest and also proposing penalties on them. This Show Cause Notice was adjudicated by the Deputy Commissioner vide Order-in-Original No. 66/2010, dated 20-1-2010, who confirmed the service tax of Rs. 1,81,819/- along with interest after invoking the extended period. He imposed the penalty under Sections 76, 77 and 78 of the Act on the Respondents. Respondents filed an appeal before the Commissioner (Appeals), who vide impugned order has reduced the demand to Rs. 26,862/- and upheld the penalty under Sections 76 and 77 of the Finance Act but dropped the penalty under Section 78 of the Act. Revenue has challenged the impugned order in the present appeal. Respondent also filed cross objection to the appeal.
 
Appellant’s contention:-Ld. DR for Revenue submits that Show Cause Notice was issued to the Respondents demanding service tax from them under Business Auxiliary Service as they are promoting and marketing service of LIC Housing/HDFC bank, etc., but the Commissioner (Appeals) has held that the Respondents are providing Business Auxiliary Service on behalf of the client and are therefore eligible for exemption under Notifications 25/2004, dated 10-9-2004 and 14/2004, dated 10-9-2004. He submits these Notifications are not applicable to the Respondent as they are covered under clause (ii) of the definition of Business Auxiliary Service for promotion or marketing of service. He submits order of the Commissioner (Appeals) needs to be set aside.
 
Respondent’s contention:- Ld. Authorised Representative for Respondents submits that Respondents are doing documentation and verification work for their client and therefore they are eligible for benefit of exemption Notifications 14/2004 and 25/2004 both dated 10-9-2004. Since they were providing services on behalf of their client, they are eligible for exemption under these Notifications.
 
Reasoning of judgment:- The Hon’ble Tribunal find that there is no dispute that activity of the Respondents is under Business Auxiliary Service. Only issues involved in this case is whether Respondents are promoting or marketing the services of financial institution or providing services on behalf of the client and are eligible for exemption under Notifications 14/2004 and 25/2004, both dated 10-9-2004.
For sake of convenience, they reproduce below provisions of Business Auxiliary Service as under:-
“Business Auxiliary Services” means any service in relation to,-
(i)     Promotion or marketing or sale of goods produce or provided by or belonging to the client; or
(ii)    Promotion or marketing of service provided by the client; or
(iii)   Any customer care service provided on behalf of the client; or
(iv)   Procurement of goods services, which are inputs for the client.
        Explanation :- For the removal of doubt, it is hereby declared that for the purposes of this sub-clause, “inputs” means all goods or services intended for use by the client; or
(v)    Production or processing of goods for, or on behalf of, the client; or
(vi)   Provision of service on behalf of the client; or
(vii)  A service incidental or auxiliary to any activity specified in  sub-clauses (i) to (iv), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision.
and includes services as a commission agent, but l(does not include any activity that amounts to manufacture of excisable goods.)
Further Notifications 14/2004 and 25/2004 both dated 10-9-2004 read as under:
Notification 25/2004, dated 10-9-2004.
“In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts that portion of the value of following taxable services, namely-
(a)    Services provided to a customer, by a commissioning and installation agency in relation to erection;
(b)    Services provided to any person, by a sub-broker in connection with the sale and purchase of securities listed on a recognised stock exchange;
(c)    Services provided to any person by a multisystem operator in relation to cable services;
(d)    Services provided to a client by a commercial concern in relation to the following business auxiliary services namely:-
(i)     Procurement of goods or services, which are inputs for the client;
(ii)    Production of goods on behalf of the client;
(iii)   Provision of service on behalf of the client; or
(iv)   A service incidental or auxiliary to any activity specified in (i) to (iii) above;
(e)    Services provided to a customer by any body corporate or commercial concern, other than a banking company or a financial institution including a non-banking financial company, in relation to banking and other financial services;
(f)     Service provided to a customer by a banking company or a financial institution including a non-banking financial company in relation to financial services namely lending; issue of pay order, demand draft, cheque, letter of credit and bill of exchange; providing bank guarantee, over draft facility, bill discounting facility, safe deposit locker, safe vaults; operation of bank accounts;
(g)    Services provided to any person by a tour operator, other than a tour operator engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or rules made thereunder, in relation to a tour; and
(h)    Service provided to a policy holder, by an insurer carrying on life insurance business in relation to the risk cover in life insurance,
From the whole service tax leviable thereon under section 66 of the said Act, which is received by the service provider prior to the 10th day of September, 2004.”
Notification 14/2004, dated 10-9-2004.
“In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is in the public interest so to do, hereby exempts taxable service provided to a client by a commercial concern in relation to the business auxiliary service, in so far as it relates to,-
(a)    Procurement of goods or services, which are inputs for the client;
(b)    Production of goods on behalf of the client;
(c)    Provision of service on behalf of the client; or
(d)    A service incidental or auxiliary to any activity specified in (a) to (c) above.
From the whole of the service tax leviable thereon under section 66 of the said Finance Act:
Provided that nothing in this notification shall apply to,-
(i)     A factory registered under or governed by the Factories Act, 1948 (63 of 1948);
(ii)    A company established by or under the Companies Act, 1956 (1 of 1956);
(iii)   A partnership firm, whether registered or not registered;
(iv)   A society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India;
(v)    A co-operative society established by or under any law;
(vi)   A corporation established by or under any law; or
(vii)  A body corporate established by or under any law,
Unless such factory, partnership firm, society, co-operative society, corporation or body corporate, as the case may be, provides any business auxiliary service in respect of any activity specified in (a) and (b) above in relation to agriculture, printing, textile processing or education.”
They find that activity of the Respondents is arranging loans from various financial institutions like LIC Housing, IDBI bank and HDFC bank. They are procuring customers for these institutions and get the loan sanctioned to these customers and in lieu of this service they receive the commission from these institutions and this way they are promoting or marketing the services of these institutions and are squarely covered under clause (ii) of definition of Business Auxiliary Service.
The Commissioner (Appeals) has held that the Respondents are providing the services on behalf of the client. They find that loans are sanctioned by the Financial Institutions only. It is not the case of Respondents that they are giving the loan amount to the customers and getting the same reimbursed from these Banks. Services provided by the Respondents cannot be said to have been provided on behalf of the client and accordingly they also become ineligible for exemption under Notifications 14/2004 and 25/2004, both dated 10-9-2004. They therefore set aside this finding of the Commissioner and restore the Order-in-Original with regard to confirmation of service tax, interest and penalties under Sections 76 and 77 of the Act. They find that Revenue has not challenged dropping of penalty under Section 78 of the Act by the Commissioner (Appeals). They therefore do not interfere with this finding of the Commissioner (Appeals). They also find that Respondents in cross objections have pointed out calculation mistake of Rs. 5,948/- in computing the demand. Revenue also agrees to this mistake. Accordingly tax amount gets reduced to Rs. 1, 81,819/- – Rs. 5,948/- = Rs. 1, 75,871.
Revenue’s appeal is allowed.
 
Decision:- Appeal allowed.
 
Comment:- The Respondents are arranging loans from various financial institution. Respondent received Commission for procurement of customers and getting loans sanctioned for customers. Therefore, the services provided by them are covered by promotion and marketing services and are leviable to service tax under Business Auxiliary Service. Services provided by respondent cannot be said to have been provided on behalf of client. Hence, they are not eligible for benefit of exemption under notification no. 14/2004 and 25/2004.
 
Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com