2025 (7) TMI 347 - AT - Service Tax

Classification of service - Business Auxiliary services - Data Processing service or Information Technology Service? - burden of proof - HELD THAT - It is found that the charges collected by Appellant are towards providing ancillary services for execution of software projects and IT enabled service projects. Such services were brought into service tax net with effect from 16.05.2008 under the category of Information Technology Software Service . Further as per clause 14 of the Agreement it is clear that the intellectual properties developed by the consultants during their deputation to ACMPL shall be the intellectual properties of ACMPL and ACMPL shall be the sole owner of such rights including copyright. Thus there is development/creation of intellectual properties and such services do not get covered under BAS . The burden of proof that the activities undertaken are covered under BAS lies on the Revenue and the Revenue has not discharged the said burden. As regards the demand for the year 2006-07 the SCN merely alleged that It was ascertained that the main client of the assessee is M/s.R.R. Donnelley (India) Outsource Pvt. Ltd. and that the assessee have collected an amount of Rs.28, 56, 613/- towards data processing charges for the period from May 2006 to March 2007 but have not paid their service tax on such receipts . However the impugned order does not state as to how these services are taxable under BAS and in any case no Service Tax could be levied on mere collection/receipt when such receipt remains outside the scope of service. Thus the activities undertaken by the Appellant viz. subsidiary and ancillary services for the software and/or IT enabled service projects of the service receivers may be covered under the new levy w.e.f. 16.05.2008 but the same is not the charge against the Appellant. Therefore from the above legal provisions it clearly emerges that the services received/rendered by the Appellant-Assessee was not taxable upto 16.05.2008. The Revenue has not been able to identify the exact nature of service as provided under BAS and therefore the demand of service tax under a general BAS cannot sustain - the impugned order is set aside - appeal allowed.

The core legal questions considered by the Appellate Tribunal (AT) in this matter were:

1. Whether the data processing services provided by the appellant to their clients fall within the ambit of 'Business Auxiliary Service' (BAS) under Section 65(19) of the Finance Act, 1994, and thus attract service tax liability during the relevant period (2006-07 and 2007-08).

2. Whether the appellant's contention that their services fall under 'Information Technology Service' (IT Service), which was excluded from BAS during the relevant period, is legally sustainable.

3. Whether the service tax demand on amounts received from M/s. RR Donnelley India Outsource Pvt. Ltd. (RRD) is justified, considering that a co-vendor, M/s. Wintec IT Enabled Services Pvt. Ltd. (Wintec), had already discharged service tax on their portion, and whether the appellant's liability is extinguished or reduced accordingly.

4. Whether the extended period of limitation under Section 73 of the Finance Act, 1994, is invokable in this case, especially when the appellant contends that there was no suppression and the issue involves interpretation of law.

Issue-wise Detailed Analysis:

1. Classification of Services Rendered by the Appellant: Whether Data Processing Services are 'Business Auxiliary Services' or 'Information Technology Services'

Legal Framework and Precedents: Section 65(19) of the Finance Act, 1994 defines 'Business Auxiliary Service' as services related to promotion, marketing, customer care, procurement, production, processing, or provision of services on behalf of the client, including incidental or auxiliary activities. Importantly, the definition explicitly excludes 'Information Technology Service' and any activity amounting to manufacture under the Central Excise Act. The definition of 'Information Technology Service' is given as any service relating to designing or developing computer software, system networking, or other services primarily related to operation of computers.

Prior to 16.05.2008, IT Services were excluded from the ambit of BAS. Post 16.05.2008, the exclusion was removed, and IT Software Services were brought under service tax net separately.

The Supreme Court decision in Commissioner of Central Excise Vs Gandhi & Gandhi Chartered Accountants (2011) firmly established that computerized data processing for billing and accounts management services fall under 'Information Technology Service' and are thus excluded from BAS.

Court's Interpretation and Reasoning: The Tribunal examined the definition of BAS and found that the appellant's services-data processing and ancillary services for software and IT-enabled projects-do not fall within any of the specific clauses enumerated under BAS. The Revenue failed to specify under which clause of BAS the appellant's services were taxable. The Tribunal emphasized that the burden of proof to establish that the services fall under BAS lies on the Revenue, which was not discharged.

The Tribunal further noted that the exclusion of IT Services from BAS continued until 16.05.2008, and since the demand relates to the period before this date, the appellant's services were not taxable under BAS during that time. The appellant's services involved development and creation of intellectual property for the client, which aligns with IT Services rather than BAS.

Key Evidence and Findings: The audit revealed receipts from clients towards data processing charges. The appellant did not contest that the services were data processing but contended classification under IT Services. The agreement between appellant and client confirmed that intellectual property rights developed during the service belonged to the client, indicating active development work rather than mere auxiliary services.

Application of Law to Facts: Since the appellant's services did not fit into any BAS clause and were excluded as IT Services during the relevant period, the demand under BAS was unsustainable. The Tribunal relied on the Supreme Court ruling affirming that computerized data processing is IT Service and excluded from BAS.

Treatment of Competing Arguments: The Revenue argued that the omission of "computerized data processing" from the IT Service definition w.e.f. 01.05.2006 meant data processing attracted service tax under BAS. The Tribunal rejected this, emphasizing the legislative intent and the Supreme Court's ruling, holding that data processing remained excluded from BAS during the relevant period.

Conclusion: The demand of service tax under BAS for data processing services during 2006-07 and 2007-08 was not sustainable, and the appellant's classification under IT Service was correct.

2. Liability for Service Tax on Amounts Received from RRD and the Effect of Co-vendor's Payment

Legal Framework and Precedents: When two or more service providers jointly provide services and discharge service tax on their respective shares, the liability is considered discharged on a proportionate basis. The principle of revenue neutrality applies if the appellant is eligible to take CENVAT credit of service tax paid by the co-vendor, as established in International Auto Ltd. Vs CCE Bihar and Commissioner of C.Ex., Pune Vs Coca-Cola India Pvt. Ltd.

Court's Interpretation and Reasoning: The appellant and Wintec had a Memorandum of Understanding (MUA) to jointly provide services on a cost-sharing basis. Wintec discharged service tax on its portion, undisputed by the Revenue. There was no subcontracting or service provider-service recipient relationship between appellant and Wintec. The appellant was entitled to CENVAT credit of the service tax paid by Wintec, making the overall exercise revenue-neutral.

Key Evidence and Findings: The impugned order acknowledged that Wintec had paid service tax on its share. The appellant's submissions and the absence of any contrary evidence established joint provision of services rather than outsourcing.

Application of Law to Facts: Since service tax was paid on the entire consideration received by both parties, and the appellant could claim CENVAT credit, no additional liability could be imposed on the appellant for the amounts received from RRD.

Treatment of Competing Arguments: The Revenue did not dispute the payment by Wintec but maintained the demand. The Tribunal gave weight to the principle of revenue neutrality and the absence of any sub-contracting relationship.

Conclusion: The service tax demand on amounts received from RRD was unsustainable as the liability was discharged jointly and was revenue-neutral.

3. Invocability of Extended Period of Limitation under Section 73

Legal Framework and Precedents: Section 73 allows extended period for service tax recovery where there is suppression of facts or fraud. However, if the issue involves interpretation of law and no suppression is alleged, the extended period is not invokable.

Court's Interpretation and Reasoning: The appellant contended no suppression or fraud, as the issue was purely legal classification. The Tribunal noted that the appellant did not contest the receipt of amounts but disputed classification and taxability. The Revenue did not establish suppression or concealment.

Application of Law to Facts: Since the demand was based on interpretation of law and no suppression was established, the extended period of limitation was not applicable.

Conclusion: The demand was time-barred and could not be sustained under extended limitation provisions.

Significant Holdings:

"The burden of proof that the activities undertaken are covered under 'BAS' lies on the Revenue and the Revenue has not discharged the said burden."

"The activities undertaken by the Appellant are not covered under any of the categories under the definition of 'Business Auxiliary Services' ... and even the Revenue has not been able to identify as to under which of the above clause, the activity of the Appellant gets covered."

"The definition of 'BAS' provides the specific exclusion of 'IT Services' from purview of service tax. This exclusion in the definition of 'BAS' continued till 16.05.2008 ... Thus, the services rendered by the Appellant were not taxable up to 16.05.2008."

"The decision rendered in Gandhi & Gandhi Chartered Accountants ... holding that computerized data processing for billing and accounts management services covered under 'Information Technology Service' and hence excluded from 'Business Auxiliary Service' appears to be very apt. The civil appeal filed by the Department against this order was dismissed by the Hon'ble Supreme Court ... Thus, the issue has attained finality."

"Since service tax has already been paid by Wintec on its portion and the appellant is entitled to CENVAT credit thereof, the entire exercise is revenue-neutral and no further liability could be imposed."

"The extended period of limitation under Section 73 of the Act is not invokable as the entire demand itself is time-barred more so, when revenue-neutrality is undisputed."

In final determination, the Tribunal set aside the impugned order confirming service tax demand and penalties, allowing the appeal with consequential benefits, holding that the appellant's services did not attract service tax under BAS during the relevant period, and that the demand on amounts jointly serviced with Wintec was not sustainable.

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