Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (10) TMI 1217 - CESTAT BANGALOREDenial of benefit of Notification No. 17/2004-ST dt. 10.09.2004 - appellant are not holder of intellectual property rights but discharged service tax as receiver of service by virtue of Section 66A of the Finance Act, 1994 - inclusion of TDS amount in the gross taxable value on which service tax was paid - HELD THAT:- A similar controversy came before the Mumbai Bench of this Tribunal in M/S ROCHEM SEPARATION SYSTEMS (INDIA) PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2015 (1) TMI 1052 - CESTAT MUMBAI]. This Tribunal analyzing Notification No. 17/2004-ST and charging Section 66 and Section 66A of the Finance Act, 1994 held that In the present case the charge of service tax is under Section 66 but the appellant being the receiver is liable to pay under Section 66A. The Commissioner’s reasoning is not correct and is rejected. Following the above principles consistently held by the Tribunal, there are no merit in the impugned order that the benefit of Notification No. 17/2004-ST dt. 10.09.2004 would not be admissible to the appellant only on the ground that service tax was discharged by them under Sec. 66A of the Finance Act, 1994 on reverse charge mechanism basis. Inclusion of the TDS amount paid by the appellant - HELD THAT:- The issue has been recently considered by the Chennai Bench of this Tribunal in the case of M/S. VSL INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2023 (3) TMI 802 - CESTAT CHENNAI] whereunder this Tribunal after analysing the precedent and the relevant provisions held So, when such TDS is not received from the non-resident since it is not towards value/consideration, there is no merit in requiring such assessee to include even the TDS it paid in the value of services, as in the case on hand and the appellant was correct in not including the TDS amount in the value of taxable services. Thus, the TDS amount paid to the Income Tax department by the appellant from his own account cannot form part of the consideration of the service charges paid to the overseas service provider, accordingly, service tax is not payable on the TDS amount paid by the appellant. Also, it is brought on record that subsequent to the payment of the TDS, realizing that being wrongly paid, refund application filed. The impugned order is set aside - Appeal allowed.
|