TMI Blog2020 (4) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax, Mumbai II v. SGS India Ltd [2014 (5) TMI 105 - BOMBAY HIGH COURT] the factum of final delivery of the resulting activity to India was held to be insufficient to withhold from service rendered the benefit accruing to exporters. Therefore, taxability is excluded if it is established that the transaction is an export. The deeming fiction carries with it the burden of tax on the entire consideration receivable by the overseas entity and in the hands of the Indian entity acting as agency of such overseas entity. Respondent is deemed provider of service and the range of activities included in the taxable service comprises the very aspects that were sought to be taxed in the proceedings initiated by the show cause notices. Perceptibly, the same activity cannot be taxed twice as the classification of services itself provides, by section 66F of Finance Act, 1994, for situation in which more than one competing entry cannot be allowed to sustain - Appeal dismissed - decided against Revenue. - Service Tax Appeal No: 85335, 85379 of 2015 With Cross-Objection No: 91164, 91036, 85452 of 2015 - A/85588-85590/2020 - Dated:- 13-3-2020 - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) AND HO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llection would have to bear the burden of tax on the consideration paid to such agent requiring the overseas provider to be subject to the same burden. 5. Two propositions are posited on behalf of respondents for exclusion from the ambit of the levy that is urged by Revenue for approval. The first of these is that the respondents, who, despite not being the real broadcast agency , are taxed by a deeming fiction which, taken to its logical conclusion by discharge of tax on the entirety of the receipts, cannot be deemed to have been erased for the purpose of collecting a further tax, for another service, on a part of the consideration that was already taxed in full. The second is that the service being rendered to an overseas entity is relieved of tax burden in furtherance of Export of Service Rules, 2005. 6. Intuitively, it is not unseemly that commission received from a foreign entity, even if for service enumerated in section 65 (105) of Finance Act, 1994, should be exempt as consideration for export unless law deems it to be provision of service in India. The rationale for fastening such a burden on this retained portion, according to Learned Authorized Representative, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for broadcasting of any programme or collecting the broadcasting charges on behalf of the said agency or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner. Section 65(1)(15) broadcasting agency or organisation means any agency or organization engaged in providing service in relation to broadcasting in any manner and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the said agency or organisation. Section 65(1)(90) taxable service means any service provided : (zk) to a client, by broadcasting agency or organisation in relation to broadcasting in any manner and, in the case of broadcasting agency or organisation, having its head office situated in any place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in India or any agent appointed in India or by any person who acts on its behalf in any manner are also brought under net of the term broadcasting . The activities as carried on by the appellants herein are not in dispute. Such activities would strictly come within the definition of the term broadcasting as amended. They will also come within the definition of the term broadcasting agency or organisation in view of the nature of activities carried on by them. It is not disputed that the appellants are engaged in the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme and are collecting broadcasting charges on behalf of ATL/EXPAND/STAR. Therefore, there is no merit in the contention of the appellants that they are not providing taxable service. 10. In the light of the above view which we are inclined to take on the status of ATL/Expand/Star and the appellants with reference to the term broadcasting and broadcasting agency , we find no merit in the contention of the appellant that the value of their service has to be limited to the payment made to it by ATL/Expand/Star. The entire amount paid by the advertiser/sponsorer to ATL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Court. This Court explained the distinction between the deeming provisions and presumption and held that the distinction is well discernible. but, in the absence of applicability, leaves us with no option but to follow 24. We have, however, a different problem at hand. Appellant admittedly is a service provider. When it provides for service, it is assessable to a tax known as service tax. Such tax is leviable by reason of a Parliamentary statute. In the matter of interpretation of a taxing statute, as also other statutes where the applicability of Article 246 of the Constitution of India, read with Seventh Schedule thereof is in question, the Court may have to take recourse to various theories including aspect theory , as was noticed by this Court in Federation of Hotel Restaurant Association of India, etc. v. Union of India Ors. [(1989) 3 SCC 634]. 25. If the submission of Mr. Hegde is accepted in its entirety, whereas on t ..... 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