2008 (6) TMI 129 - AT - Service Tax

Applicants are engaged in Short Message Peer to Peer services (SMPP service). The contention of the applicant is that they are only acting as carrier of messages like a courier sending parcels - applicants entered into an agreement with their clients for forwarding the SMS to various persons as per instructions of the clients for consideration hence providing business auxiliary service which includes provisions of service on behalf of the client hence stay cannot be granted completely

Summary

Issues:
1. Whether the applicant is liable to pay Service Tax for providing business auxiliary service on behalf of clients.
2. Whether the demand raised by the Revenue is time-barred.

Analysis:
1. The applicant contended that they are engaged in "Short Message Peer to Peer services" and argued they are merely acting as carriers of messages, similar to a courier service, and not providing services on behalf of clients. They claimed that they are providing services to clients, not on behalf of them, citing a Supreme Court decision. The Revenue argued that the applicant entered into agreements with clients to forward SMS messages to subscribers on behalf of clients for consideration, thus providing business auxiliary services. The Tribunal found in favor of the Revenue, confirming the demand as the applicant was providing services on behalf of clients, falling under business auxiliary services.

2. Regarding the time bar issue, the Revenue contended that the applicant did not disclose their activities accurately in their returns, merely mentioning income from non-taxable services without providing specific details. The Revenue argued that since the major portion of the demand fell within the normal limitation period, suppression of facts could be alleged. The Tribunal noted that the show-cause notice was issued within the normal limitation period for the majority of the demand, rejecting the applicant's argument of time bar.

3. The Tribunal dismissed the applicant's reliance on a Supreme Court decision related to agricultural income tax, stating that it was not applicable to the present case. The Tribunal directed the applicant to deposit a total of Rs. 40 lakhs within eight weeks, with the remaining amount of Service Tax and penalties waived for the appeal hearing. The case was scheduled for compliance reporting on 1.9.2008.