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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.  

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PJ/Case Laws/2012-13/1303

Whether Financing fees, Processing fees, Recovery of common expenses chargeable to service tax?



Case:- J. M. FINANCIAL SERVICES P. LTD. versus COMMR. OF SERVICE TAX, MUMBAI
 
Citation:- 2012 (27) S.T.R. 49 (Tri. – Mumbai)
 
Brief Facts:-This is stay application for waiver of pre-deposit of service tax along with interest & penalties imposed under the category of “Business Auxiliary Services” and “Business Support Services”.
 
Financing Fees: The demand has been confirmed against the applicants for IPO Finance under the head “BAS” to the tune of Rs. 84,81,472/-. The Appellant are financing to their clients through Non Banking Finance Company which are sister concerns or of the appellant’s and share the income of interest earned by these NBFC on revenue sharing basis. There was a MOU between the appellant and the NBFC in terms of which NBFC were to arrange finance for the appellant’s clients. The appellant and the NBFC Company were to share the in­come earned from this activity after deducting the expenses. The Department is of the view that said activity is covered under the "Business Auxiliary Ser­vices" because the appellant were promoting the business of these NBFC's by way of performing the activity of introducing its corporate clients to their NBFC's.
 
Processing Fees: The appellant are collecting money on behalf of the company who issues IPO. The money collected by the appellant is to be deposited in a designated bank assigned by the IPO issuing company. The appellant deposited the money in the bank and as the bank earns interest on the deposit made by the appellant. Therefore, bank shares interest earned by them with the appellants. The Revenue is of the view that it is an activity of promotion of the business of the bank, therefore, they are liable to pay service tax under “BAS.”
 
Recovery of common expenses:  The expenses are recovered by the appellant from the co-user of the premises on actual basis. The appellant are doing these expenses on behalf of co-user, and recovering the same from their co-user as per their usage. The department is of the view that the recovery of the expenses are covered under the category of infrastructural support service as the appellant are providing infrastructural support services to their co-user.
 
 
Reasoning of Judgment:-We have considered arguments on both the sides. We find that as per MOU, the appellant have agreed to compensate these NBFC’s, if any demand arises. In that situation, the appellant have not acted as a commission agent, therefore, these are doing business with these NBFC’s on principal to principal basis and sharing the profits. Therefore, the appellants are not rendering any service under “BAS” and have made out a strong case for waiver of pre-deposit of demands adjudged by the impugned order for this activity.
 
We find that prima facie the activity undertaken by the appellant is the investments in bank assigned by the IPO issuing company. The amount of interest income which the bank shares with the appellant is not because the appellant is promoting or marketing any of the services provided by the bank. Therefore, the appellants are not liable to pay service tax under this category also and have made out a case for 100% waiver of pre-deposit.
 
   
On going through the records, it is found that the activity is also not covered under the "Business Support Services" as the applicants are paying the expenses incurred by them on all the premises and thereafter recovered from the co-user on actual usage basis. There­fore, prima facie we are of view that the applicants are not rendering any service at all, they have made out a case for 100% waiver of pre-deposit.
 
Decision: -Stay Application Allowed.
 
Comment: The analogy drawn from the above case is that revenue cannot demand service tax on each and every activity by deeming it to be a service under the category of BAS or BSS as these are not residuary services that if any activity cannot said to be made taxable under any other service category, it is covered under BAS or BSS.
 
 
 
 

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