By Puloma Dalal, Jayesh Gogri, Chartered Accountants
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In cases of import of services, service tax is leviable on consideration inclusive of tax deducted at source.
Facts:
The appellants had received consulting engineering services from outside India for the period March, 2004 to September, 2007 and had paid service tax under reverse charge u/s. 66A of the Finance Act, 1994 read with Rule 2(1)(d)(v) of the Service Tax Rules, 1994. However, service tax was paid on the value of services excluding tax deducted at source (TDS) under the Indian Income Tax laws. The appellants contended that there should not be any tax on the amount of TDS specifically in view of the fact that the payment to foreign consultant should be the basis of service tax levy. The revenue contested that the agreement stated that the consideration was net of all Indian taxes and such taxes were payable by the appellants in addition to the amount payable to foreign consultant and therefore, forms part of the contract price. Further, vide section 66A of the Finance Act, 1994, the recipient was treated as service provider and therefore, by legal fiction, the consideration inclusive of TDS, shall be the assessable value. It was also the case of the respondents that the appellants could not prove its contention as to why TDS should not form part of the “gross amount charged” vide Rule 7 of the Service Tax (Determination of value) Rules, 2006, according to which, service tax was leviable on actual consideration charged for services provided or to be provided.
Held:
The Tribunal held that the appellants were not liable to pay service tax under reverse charge prior to 18/04/2006 in absence of statutory provisions in this regard as had been upheld by the Hon’ble Supreme Court in case of Union of India vs. Indian National Shipowners Association 2010 (17) STR J57 (SC). In the present case, as per the terms of the contract, TDS formed part of the contract price and therefore, was includible in the value of taxable services. The benefit of cum-tax should be available to the appellants while raising the modified demand on the basis of the observations made by the Tribunal. In view of the law being at the stage of inception, penalty u/s. 78 of the Finance Act, 1994, was set aside.
