Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2115

Whether hiring of overseas employees for expansion leviable to service tax under manpower supply?

Case:- COMPUTER SCIENCES CORPORATION INDIA PVT LTD Vs COMMISSIONER OF SERVICE TAX, NOIDA
 
Citation:-2014-TIOL-434-CESTAT-DEL
 
Brief facts:-The assessee preferred this appeal against the adjudication order No. 37/Commissioner. Noida/2012-13 dated 30.10.2012 passed by the Commissioner of Customs, Central Excise and Service Tax, Noida. The impugned order confirmed the service tax demand of Rs.3,78,49,744/- besides interest under Section 75 and penalty of equivalent amount as the tax liability assessed under Sections 77 and 78 of the Finance Act, 1994 (the Act). The confirmed demand of tax, interest and penalties is predicated on the assumption that the appellant had provided Man-power Recruitment or Supply Agency service enumerated in Section 65(105)(k) of the Act.
 
Contesting the attribution of having provided the taxable service, the appellant unsuccessfully contended in the adjudication proceedings that in furtherance of its business operations in India, it hired certain overseas employees (expatriate employees) who were either directly employed by the appellant or were transferred from other group companies; that during the tenure of employment in India, the expatriate employees are for all intents and purposes, employees of the appellant and discharge duties and responsibilities as such in India. The appellant also contended that it had incurred the expenditure on the expatriate employees' social security benefits in India by way of Provident Fund etc. and also deducted from their salaries and pays income tax on the basis of the total income earned on behalf of the expatriate employees; and the appellant also issued Form 16 and Form 12 BA of the Income Tax Act, 1961 to the expatriate employees in its status as the employer. In addition to these remittances and deductions of the appropriate tax under the provisions of the 1961 Act, the appellant also remits to its group companies certain social security and other benefits that are payable to the account of the expatriate employees under the laws of the foreign jurisdiction; that no amounts over and above the remittances made to the credit to the seconded employees was ever paid to the overseas group companies.
 
Rejecting the defence of the appellant, the impugned order clarified the transaction in issue as constituting 'Man-power Recruitment or Supply Agency' service and brought to tax the entire remittances by the appellant to the overseas group companies; remittances by way of reimbursement of the overseas group companies' liabilities in respect of the seconded employees, treating these remittances as the gross consideration paid for receipt of the specified taxable service, under the reverse charge mechanism provided in Section 66A of the Act. Parties are agreed that the issue is squarely covered by the Final Order of this Tribunal in Volkswagen India (Pvt.) Ltd. vide Final Order No. A/2006-2008/13/CSTB/C-I dated 30.9.2013 = (2013-TIOL-1640-CESTAT-MUM).
 
Appellant’s contention:- The contention of appellant is that in view of furtherance of its business operations in India, it hired certain overseas employees (expatriate employees) who were either directly employed by the appellant or were transferred from other group companies; that during the tenure of employment in India, the expatriate employees are for all intents and purposes, employees of the appellant and discharge duties and responsibilities as such in India. The appellant also contended that it had incurred the expenditure on the expatriate employees' social security benefits in India by way of Provident Fund etc. and also deducted from their salaries and pays income tax on the basis of the total income earned on behalf of the expatriate employees; and the appellant also issued Form 16 and Form 12 BA of the Income Tax Act, 1961 to the expatriate employees in its status as the employer. In addition to these remittances and deductions of the appropriate tax under the provisions of the 1961 Act, the appellant also remits to its group companies certain social security and other benefits that are payable to the account of the expatriate employees under the laws of the foreign jurisdiction; that no amounts over and above the remittances made to the credit to the seconded employees was ever paid to the overseas group companies.
 
Respondent’s contention:-The respondent reiterated the findings of the lower adjudicating authority and pleaded for upholding the order in original.
 
Reasoning of judgment:- In the light of the judgment in Volkswagen India (Pvt.) Ltd. (supra), the appeal is allowed and the impugned adjudication order is quashed. The appellant shall be entitled to consequent benefits. Miscellaneous Application No.61437/2013 is filed for a declaration that adjustment of the demand raised consequent on the adjudication order dated 30.12.2012 (subject matter of the substantive appeal) from the amounts payable to the appellant under refund orders passed, vide the orders dated 17.9.2013 and 4.10.2013 be declared void and inoperative and to grant restitutive relief by directing Revenue to refund the amounts sanctioned by way of refunds. During the pendency of the appeal and prior to adjudication of the application for waiver of pre-deposit, certain refund claims presented by the petitioner/appellant (in respect of unutilized credits) were disposed of and refunds ordered on 17.9.2013 and 4.10.2013 and in December 2013. These orders while sanctioning refund had ordered adjustment of the refundable amounts towards the amounts assessed and leviable towards the service tax liability, which were confirmed by the impugned adjudication order, challenged in the substantive appeal. Contending that the assessment of liability to service tax, interest and penalties confirmed by the impugned adjudication order, is unsustainable and that consequently adjustment of such illegal levy from the refunds ordered is arbitrary and illegal, this application is filed.
 
By the final order, the bench disposed of the substantive appeal and have quashed the adjudication order passed by the Commissioner of Customs, Central Excise and Service Tax, Noida vide Order-in-Original No.37/Commissioner, Noida/ 2012-13 dated 30.10.2012. As the assessed liability of the petitioner under the adjudication order has thus suffered a plenary eclipse, the petitioner would be entitled to refund. The petitioner is at liberty to apply for refund. When made, such application shall be disposed of by the appropriate authority, in accordance with law and expeditiously. This application is accordingly disposed of. Ld. A.R. for Revenue states that no order by way of restitution should be granted in this application since the grievance herein is against an order of Assistant Commissioner (directing adjustment of the refunds sanctioned) and an appeal against such order is provided under the Act to the Commissioner (Appeals). We are not passing any order directing refund but have only declared that the petitioner is entitled to refund ex debito justitia.
 
Decision:- Appeal allowed.
 
Comment:- The crux of this case is that when employees are brought from overseas and are given all the benefits of Indian as well as Foreign tax laws in the capacity of an employee, than they cannot be levied to service tax under reverse charge mechanism under manpower supply service. Further, in the present case, there was no consideration flowing to the overseas companies except on account of entitlements towards the employee benefits as per foreign laws to be ultimately paid to employees. As such, there was no provision of manpower supply service by overseas companies to the appellant. 

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