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2021 (10) TMI 385 - AT - Service TaxLevy of service tax - Incentive received by service receiver from service provider, on appreciable performance - confirmation of demand without specifying the sub clause of BAS under which the activities are covered - confirmation of demand under the taxable category of BAS in absence of three parties – service provider, service receiver and targeted audience - where value of service is fixed under an option provided under the Rules, such option having been exercised and not withdrawn, is it open for the authorities to demand service tax on other consideration or incentive received - fastening of service tax liability without specifying the consideration for service as provided under Section 67 of the Chapter V of Finance Act, 1994 - fastening of service tax liability in absence of the relationship of service provider and service receiver - Invocation of extended period of limitation - section 73(1) of the Finance Act, 1994. HELD THAT:- The reference was answered by the Larger Bench of the Tribunal in KAFILA HOSPITALITY & TRAVELS PVT. LTD. VERSUS COMMISSIONER, SERVICE TAX, DELHI [2021 (3) TMI 773 - CESTAT NEW DELHI]. The issues are answered as below: Whether the Incentive received by service receiver from service provider, on appreciable performance, can be subjected to service tax? - HELD THAT:- The incentives received by a service recipient from a service provider cannot be subjected to levy of service tax. Whether a demand can be confirmed without specifying the sub clause of BAS under which the activities are covered? - HELD THAT:- This issue does not arise for consideration in this appeal as the show cause notice and the adjudicating order had confirmed the demand under section 65(19)(ii) of the Finance Act. Whether demand of service tax can be confirmed under the taxable category of BAS in absence of three parties – service provider, service receiver and targeted audience? - HELD THAT:- A passenger cannot be deemed to be an audience for the promotion of the business of CRS Companies. Whether in cases where value of service is fixed under an option provided under the Rules, such option having been exercised and not withdrawn, is it open for the authorities to demand service tax on other consideration or incentive received, be taxed under another category? - Can service tax liability be fastened without specifying the consideration for service as provided under Section 67 of the Chapter V of Finance Act, 1994 as amended up to date? - Can service tax liability be fastened in absence of the relationship of service provider and service receiver? - HELD THAT:- In view of the discussion and findings these issues do not arise for consideration and are, therefore, not being answered. The findings and the answers given by the Larger Bench on the six issues, the impugned order dated May 20, 2015 passed by the Commissioner cannot be sustained and is set aside - Appeal allowed.
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