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2025 (5) TMI 1369 - AT - Service TaxLevy of service tax - nature of activity - service or not - incentives discounts or reimbursements extended by a motor vehicle manufacturer to its authorized dealer under a principal-to-principal dealership agreement - HELD THAT - The Larger Bench of this Tribunal in the case of Kafila Hospitality and Travels Pvt. Ltd. 2021 (3) TMI 773 - CESTAT NEW DELHI (LB) dealt with the issue whether service tax can be levied under the category of Business Auxiliary Service on target based incentives paid to the travel agents by the Airlines as they were promoting and marketing the business of the Airlines. The Tribunal took the view that it is not a case where the air travel agent is promoting the service of the Airlines rather by sale of airlines ticket he was ensuring the promotion of its own business even though this may lead to incidental promotion of the business of the Airlines. On the issue whether incentive paid for achieving target are taxable the Tribunal analysed the scope of the term incentives that they are generally given to encourage performance of the party. On examining the dealership agreement entered between MSIL and the appellant it is found that MSIL is engaged in manufacturing marketing and selling of motor vehicles and the appellant purchases the vehicles from the manufacturer as their authorised dealer. The relationship between the appellant and MSIL is only of buyer and seller and sale-purchase have taken place on principal to principal basis. The activity undertaken by the appellant is for the sale and purchase of the vehicle and the incentives are in the nature of trade discounts. The incentives therefore form part of the sale price of the vehicles and have no correlation with the services to be rendered by the appellant. That in terms of the dealership agreement the appellant purchases the vehicles from MSIL and sells the same to its end customers. The activity of promoting the sale is with respect to the vehicles owned by the appellant which incidentally is in interest of both the parties - the appellant is engaged in the onward sale of vehicles which involves merely transfer of property in goods which is excluded from the definition of service . That Section 66D of the Finance Act 1994 contains the negative list of services under various clauses and clause (e) provides for trading of goods . On this ground also it is found that incentives which are part of sale activity are not exigible to service tax. Conclusion - The amount of incentives and discounts cannot be treated as consideration for any service and therefore no Service Tax is leviable thereon. The impugned order is therefore set aside and the appeals are allowed.
The primary issue considered by the Tribunal is whether service tax is leviable on incentives, discounts, or reimbursements extended by a motor vehicle manufacturer to its authorized dealer under a principal-to-principal dealership agreement.
The Tribunal examined the legal framework under the Finance Act, 1994, particularly the definition of "service" under Section 65B(44), the negative list of services under Section 66D, and relevant provisions of the CGST Act, 2017. The appellant, an authorized dealer of a motor vehicle manufacturer, received incentives and trade discounts based on sales target achievements. The revenue sought to impose service tax on these incentives, alleging that they constituted consideration for "Business Auxiliary Services" or other taxable services. In addressing the issue, the Tribunal relied heavily on a series of precedents that have consistently held that incentives or discounts granted by manufacturers to dealers under principal-to-principal dealership agreements do not constitute consideration for taxable services. These precedents include decisions by various benches of the Tribunal and High Courts, which have analyzed similar dealership arrangements and the nature of incentives paid. The Tribunal noted that the dealership agreements establish a buyer-seller relationship where the dealer purchases vehicles from the manufacturer on principal-to-principal basis and subsequently sells them to end customers. The incentives given by the manufacturer are linked to overall sales performance and act as trade discounts, effectively reducing the sale price of vehicles. The Tribunal quoted the Ahmedabad Bench in B.M. Autolink, which observed that such discounts are "nothing but a discount in the sale value of the vehicle sold throughout the year" and thus cannot be construed as consideration for a service liable to service tax. Further, the Tribunal referred to the Larger Bench decision in Kafila Hospitality and Travels Pvt. Ltd., which dealt with target-based incentives paid to travel agents by airlines. The Tribunal in that case distinguished between commission (transaction-specific consideration) and incentives (performance-based and not linked to any particular transaction). It was held that incentives aimed at encouraging overall business performance do not qualify as consideration for a taxable service. The Tribunal reproduced the reasoning of the Federal Court of Australia in A.P. Group, which emphasized that payments intended to encourage an overall business relationship do not amount to supplies for consideration and thus are not taxable. Applying these principles, the Tribunal found that the appellant's receipt of incentives and discounts was part of the sale transaction and not consideration for any service rendered. The activity of promoting sales was incidental and in the mutual interest of both parties but did not convert the incentives into taxable service consideration. Moreover, the onward sale of vehicles by the appellant involved transfer of property in goods, which is explicitly excluded from the definition of "service" under Section 66D(e) of the Finance Act, 1994, reinforcing the conclusion that service tax is not leviable. The Tribunal also noted that since the issue was decided on merits in favor of the appellant, it was unnecessary to adjudicate the question of limitation raised by the appellant. In conclusion, the Tribunal held that the incentives and discounts received by the appellant from the manufacturer are not liable to service tax. The impugned order demanding service tax, interest, and penalties was set aside, and the appeal was allowed. Significant holdings include the following verbatim excerpt from the Ahmedabad Bench in B.M. Autolink: "The transaction between M/s. Maruti Suzuki India Ltd. and the dealer and subsequently sale transaction between the dealer and the end customers are purely on principal to principal basis. The vehicle manufacturer M/s. Maruti Suzuki India Ltd. on the basis of yearly performance of sale grants the discount to the dealer, this discount is nothing but a discount in the sale value of the vehicle sold throughout the year therefore these sales discount in the course of transaction of sale and purchase of the vehicles hence, the same cannot be considered as service for levy of service tax." Also, from the Larger Bench in Kafila Hospitality and Travels Pvt. Ltd. regarding incentives: "Consideration, which is taxable under section 67 of the Finance Act, should be transaction specific. Incentives, on the other hand, are based on general performance of the service provider and are not to be related to any particular transaction of service." And the Federal Court of Australia's reasoning in A.P. Group: "The overall relationship contemplates a continuing dialogue between wholesaler and retailer in which promises are routinely exchanged, but to characterize this dialogue as involving supply after supply is unrealistic and impractical... The fact that the dealer receives a payment as an incentive when certain thresholds associated with running the business in this way does not mean that the dealer is supplying a service to the manufacturer for consideration. If the incentive payment were not available there is no basis to infer that the dealer would not behave in the same way for free." Core principles established are:
Accordingly, the Tribunal's final determination was to set aside the demand of service tax, interest, and penalties, holding that no service tax is leviable on the incentives or trade discounts received by the appellant from the manufacturer.
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