TMI Blog2016 (3) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... cern' - Appellant contended that notwithstanding the title of the agreement, it had merely rented out space to M/s Style Spa and that the building space was owned by the kartha and co-parceners of the Hindu Undivided Family (HUF) as an asset which could not be considered as a commercial activity - Held that:- HUFs can also be commercial concerns is no longer res integra as decided by Tribunal in the case of re Infinity Credit. Therefore, for reasonableness of doubt that individuals may not be 'commercial concerns', section 80 of Finance Act, 1994 be invoked and penalty imposed under Section 78 is set aside. Cum-tax computation - Rental of immovable property - Appellant is the custodian of the goods intended for sale - Held that:- the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act,1994. 2. The appellant has been held liable to tax for the period from February 2004 to April 2006 on amounts allegedly received as 'commission agent' which falls within the definition of 'business auxiliary service' in section 65 (19) of Finance Act, 1994. The appellant entered into an 'agreement of retail agency' with M/s Style Spa in January 2004 in accordance with which the appellant provided its space in a commercial building for exhibiting the products of M/s Style Spa which were to be delivered by the appellants to customers on instructions. The appellants were responsible for collecting and remitting the sale price to M/s Style Spa and were to receive 1% of sale value as commission subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s auxiliary service' includes that rendered by a 'commission agent' since the introduction of the taxable entry but 'commission agents' were exempted from the purview of tax by notification no. 13/2003-ST dated 20 th June 2003. However, the said exemption was restricted to sale and purchase of agricultural produce vide notification no. 8/2004-ST dated 9 th July 2004. Commission agent was defined in the said exemption notification as 'a person who causes sale or purchase of goods, on behalf of another person for a consideration which is based on the quantum of such sale or purchase' 7. We take notice of section 65(105)(zzb) of Finance Act, 1994 which till 30 th April 2006 taxed 'business auxiliary serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of sale. Guarantee of minimum payment of ₹ 1,10,000/- per mensem does not detract from the connection with sale. This is squarely within the ambit of 'commission agency' which became taxable for non-agricultural produce in the hands of provider of 'business auxiliary service' vide notification of 9 th July 2004. Appellant is eligible for exemption from February t July 2004. It is observed that, during the period of dispute, appellant was in receipt of only the minimum guaranteed amount of ₹ 1,10,000/-. The agreement also makes it clear that M/s Style Spa is responsible for discharge of tax liability. In view of these facts, the plea of the appellant for 'cum-tax' computation is justified. 10. The im ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
