2025 (5) TMI 1131 - AT - Service Tax

Non-payment of service tax - amounts received by the appellant comprising professional fees and reimbursable expenses - pure agent services - HELD THAT - The Hon ble Supreme Court in the case of Intercontinental Consultants Technocrats Pvt. Ltd. vs. Union of India 2018 (3) TMI 357 - SUPREME COURT held that the value of taxable service has to be the gross amount charged for the service provided and cannot include reimbursement expenses unless specifically stated. The Hon ble Supreme Court struck down Rule 5(1) stating that it was ultra vires Section 67 of the Finance Act 1994. The impugned orders cannot be sustained and are accordingly set aside - Appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the amounts received by the appellant, comprising professional fees and reimbursable expenses, are liable to service tax in entirety or only the professional fees excluding reimbursable expenses constitute taxable value.

- Whether the appellant can claim the status of a "pure agent" under Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006, thereby excluding reimbursable expenses from the taxable value.

- Whether the impugned orders demanding service tax on gross receipts without deduction of reimbursable expenses are sustainable in light of the legal provisions and judicial precedents.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Taxability of Reimbursable Expenses in Service Tax Valuation

Relevant Legal Framework and Precedents: The valuation of taxable services is governed by Section 67 of the Finance Act, 1994, and the Service Tax (Determination of Value) Rules, 2006, particularly Rule 5. Rule 5(1) states that all expenditure or costs incurred in providing taxable services are included in the value for charging service tax. However, Rule 5(2) provides an exception for expenditure incurred by the service provider as a "pure agent" of the service recipient, subject to several conditions.

The Hon'ble Supreme Court in Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India (2018) held that the value of taxable service must be the gross amount charged and reimbursement expenses cannot be excluded unless specifically provided. The Court struck down Rule 5(1) as ultra vires Section 67, emphasizing that the gross amount charged is the taxable value unless a specific exemption applies.

Court's Interpretation and Reasoning: The Tribunal examined whether the appellant's reimbursable expenses qualify for exclusion under the "pure agent" provisions in Rule 5(2). The conditions include that the service provider acts as a pure agent, the recipient uses the goods or services procured, the recipient is liable to pay the third party, authorization is given to the service provider to pay on behalf of the recipient, separate indication in the invoice, and recovery only of the actual amount paid.

Upon scrutiny, the Tribunal noted that the appellant provided valuation services to banks and other institutions and charged clients professional fees along with reimbursable expenses incurred for obtaining various reports and documents from district offices and associated service providers. The appellant contended that these reimbursable expenses were incurred on behalf of clients and supported by certificates from the banks.

However, the Tribunal referenced the Supreme Court's ruling that gross amount charged is taxable, and reimbursable expenses cannot be excluded unless they satisfy the strict criteria of a pure agent. The illustrations in Rule 5 clarify that expenses such as telephone, travel, or other costs incurred by the service provider to enable service provision do not qualify as pure agent expenses and are taxable.

Key Evidence and Findings: The appellant's financial statements showed gross receipts and reimbursable expenses separately. The appellant argued that the taxable value should be gross receipts minus reimbursable expenses, as the latter were merely pass-through costs.

The Department relied on third-party information from the Income Tax Department showing gross receipts without deductions and contended that the appellant did not respond to requests for documentation, leading to assessment on gross amounts.

Application of Law to Facts: The Tribunal applied the legal framework and the Supreme Court precedent to the facts, concluding that the reimbursable expenses did not meet the pure agent criteria under Rule 5(2). The appellant's expenses were incurred to facilitate the provision of valuation services and thus formed part of the taxable value.

Treatment of Competing Arguments: The appellant's argument that reimbursable expenses should be excluded was rejected based on the Supreme Court's authoritative ruling. The Department's position that service tax is payable on gross receipts was upheld in principle but was undermined by procedural lapses in the assessment process.

Conclusions: The Tribunal concluded that service tax is leviable on the gross amount charged by the appellant, including reimbursable expenses, unless the pure agent conditions are strictly met, which was not the case here.

Issue 2: Validity of the Assessment and Demand of Service Tax on Gross Receipts

Relevant Legal Framework and Precedents: Section 73(1) of the Finance Act, 1994 empowers the Department to demand service tax where there is short payment or non-payment. The Department issued show cause notices based on third-party information and assessed the appellant on gross receipts due to non-cooperation.

Court's Interpretation and Reasoning: The Tribunal examined the procedural aspects and found that the appellant did not respond to the Department's requests for balance sheets, service tax returns, and ledgers. Consequently, the Department proceeded with assessment based on available data.

However, the Tribunal emphasized the necessity of proper verification and adherence to principles of natural justice. The appellant's submissions and documentary evidence, including certificates from banks and financial statements, demonstrated that the taxable value was below the threshold limit when reimbursable expenses were excluded.

Key Evidence and Findings: The appellant's financial data indicated that after excluding reimbursable expenses, the taxable value was significantly lower than the gross receipts. The Department's failure to consider these documents and the Supreme Court's ruling on valuation led to the impugned orders being unsustainable.

Application of Law to Facts: The Tribunal applied the legal principles requiring that assessments be based on accurate and complete information and that the valuation must conform to statutory provisions and judicial pronouncements.

Treatment of Competing Arguments: The Department's reliance on third-party data and non-response from the appellant was weighed against the appellant's documentary evidence and legal position. The Tribunal found the Department's approach flawed due to non-consideration of reimbursable expenses and the Supreme Court's ruling.

Conclusions: The Tribunal set aside the impugned orders, holding that the demand and penalty imposed on the appellant could not be sustained.

3. SIGNIFICANT HOLDINGS

- "The value of taxable service has to be the gross amount charged for the service provided and cannot include reimbursement expenses unless specifically stated."

- The Hon'ble Supreme Court struck down Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 as ultra vires Section 67 of the Finance Act, 1994, emphasizing that gross amount charged is the taxable value.

- The appellant's reimbursable expenses did not satisfy the strict conditions of a "pure agent" under Rule 5(2), and hence, the entire amount charged, including reimbursable expenses, is subject to service tax.

- The impugned orders demanding service tax on gross receipts without proper consideration of the appellant's documentary evidence and the Supreme Court's ruling were set aside.

- The Tribunal allowed the appeals with consequential relief, holding that the demand and penalties imposed could not be sustained.