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Business Support Services [Sec 65(105)(zzzq)]
Effective upto 30th June, 2012
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Landmark Service Tax Judgment - Business Support Services

INTRODUCED: With Effect from 1st May 2006
 
Contents
Scope
Exemption
Clarification
Relevant Notifications / Circulars
Landmark Judgements
Accounting Code
Service Tax 00440366
Interest
00440367
Penalty 00441447
 
DEFINITION:

According to Section 65 (105) (zzzq), any service provided or to be provided; to any person, by any other person, in relation to support services of business or commerce, in any manner, is taxable service.

According to Section 65 (104c) “support services of business or commerce” means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational or administrative assistance in any manner, formulation of customer service and pricing policies, infrastructural support services and other transaction processing.

Explanation.—For the purposes of this clause, the expression “infrastructural support services” includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security;

 
SCOPE:
TOP

Business entities outsource a number of services for use in business or commerce. These services include transaction processing, routine administration or accountancy, customer relationship management and tele-marketing. There are also business entities which provide infrastructural support such as providing instant offices along with secretarial assistance known as “Business Centre Services”. It is proposed to tax all such outsourced services.

 
SERVICE TAX EXEMPTIONS:
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(a) Small service providers whose aggregate value of taxable services rendered in the previous year has not exceeded the limit of Rs. 10,00,000/-  (Service Tax Notification No. 8/2008-ST dated 01.03.2008)

(b) Services provided to the UN and International Agencies

(c) Services provided to Special Economic Zones (SEZ) and SEZ developers

(d) Exported services as defined in ‘Export of Services’ Rules

(e) Services provided to foreign diplomatic missions, family members of diplomatic missions etc.

(f) Services provided by Reserve Bank of India

(g) Out of total value of service provided proportionate value of goods and materials provided by the service provider

 
CLARIFICATIONS:
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ISSUE 1: Whether Shipping companies engaged by Postal Department are liable to pay Service Tax under Business Support Services?

ANSWER 1: Postal Department has engaged shipping companies for conveyance of outwards surface Indian Postal Mails to various ports of foreign countries and handling of export cargo or passenger baggage etc., From the facts mentioned it appears that the service provided by shipping companies is in the nature of ‘distribution, management and logistics’ and delivery order charges and inland haulage charges collected by shipping companies are for such ‘distribution, management and logistics’ service. Such service is specifically covered under ‘business support services’ and is liable to Service Tax.

ISSUE 2: Whether the activity of screening of film supplied by a film distributor would fall under any of the taxable services and accordingly, whether the theatre owners are required to pay service tax on amount received by them from distributors?

ANSWER 2: By definition ‘Business Support Service’ is a generic service of providing ‘support to the business or commerce of the service receiver’. In other words, the principal activity is to be undertaken by the client while assistance or support is provided by the taxable service provider. In the instant case, the theatre owner screens/exhibits a movie that has been provided by the distributor. Such an exhibition is not a support or assistance activity but is an activity on its own accord. That being the case such an activity cannot fall under ‘Business Support Service’.

 
RELEVANT SERVICE TAX CIRCULARS/INSTRUCTIONS/TRADE NOTICES:
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Service Tax Circular No. 121/3/2010-ST, dated 26-04-2010
Service Tax Circular No. 109/03/2009-ST dated 23-02-2009
Service Tax  F. No. 137/131/2007-CX-4, dated 12-12-2007 of CBEC
Service Tax F. No. 137/186/2007-CX-4, dated 23-08-2007 of CBEC
Service Tax Circular No. 80/10/2004-ST, dated 17-09-2004
 
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Case Laws Related

  • STO 2014 CESTAT 44
  • Service Tax: Business Support Service: Refund claim for the period from 10/2006 to 03/2007 under Notification No. 5/2006 dated 14.03.2006 CE (NT) for the accumulated unutilized CENVAT credit of service tax: Scope: The services on which credit has been allowed by the Commissioner (Appeals) can be said to have nexus with output service. The original adjudicating authority is required to ensure that working out the admissibility of differential credit of refund should be done appropriately in accordance with Notification No. 5/2006 dated 14.03.2006 CE (NT) excepting the decision relating to the services in respect of which credit is admissible which would be done as a combination of the order of the adjudicating authority and the appellate authority.(Para 2).

    Appeal disposed off.

  • STO 2014 CESTAT 38
  • Service Tax: Business Support Service for promoting the activities of various entities in the IPL-1, IPL-2 and IPL-3 sessions: Demand: Scope and liability: The show cause notice has invoked extended period of limitation for demanding service tax from the appellant. On an identical issue in the case of Shri Irphankhan M. Pathan & Shri Yusufkhan M Pathan Vs. CCE, Vadodara- STO 2012 CESTAT 759, this Tribunal directed the appellants therein to deposit 20% of the amount which is within the normal period.(Para 3).

    Pre-deposit ordered.

  • STO 2013 CESTAT 1297
  • Business Support Service: Activity of collection and removal of Fly ash as per rate of the order of Government of Tamil Nadu would not constitute "infrastructural support service" under the definition of "Support Service of Business or Commerce": Government of India, Ministry of Environment and Forests issued Notification dated 14.9.1999 to the effect that Fly ash should be supplied free of cost. Subsequently, by notification dated 6.11.2008, issued by Ministry of Environment and Forest, Thermal Power Stations are permitted to sell Fly ash to the user agencies. It makes it clear that the consideration received by the appellant from the cement and asbestos sheet companies for supply of Fly ash seems to be for sale of fly ash: It is not for any service provided to the persons taking delivery of Fly ash, notwithstanding the name under which, it is collected. Hence, the demand of service tax along with interest is not sustainable.

  • STO 2013 CESTAT 1170
  • Business Support Services: Renting of Immovable Property Service: Applicant is an organization of the State Government of Kerala and developed the Electronic Software Technology Park. In the Park, the applicant is giving premises on rent to various entrepreneurs and charging a fixed rent and the applicant are paying service tax with effect from 1.6.2007 under the category of Renting of Immovable Property : Revenue is demanding service tax for the period from May 2006 to March 2011 under the category of 'Business Support Services' on the ground that the applicant is actually providing composite package of infrastructural supports within the campus: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 1324
  • Business Support Service: Laying of optical fibre for railways: Laying of Optical Fibre Cables has to be treated as "works contract" in respect of railways and therefore the fees received by the appellant has to be treated as part of the works contract cost: Prima facie, it may not be appropriate to classify the service as "Business Support Service" for levy of service tax: Pre deposit waived.

  • STO 2013 CESTAT 999
  • Business Support Service: After 1.5.2011 definition amended to include the words "operational or administrative assistance in any manner": Activities prior to this date not liable: Pre deposit waived.

  • STO 2013 CESTAT 595
  • Business Support Service: Construction of Road: Service tax demanded on the basis of income during the relevant period on account of various heads in the balance sheet: From the proceedings before the lower authorities, it is not clear as to whether the services were provided as part of construction of road: Individual contracts quoted have also not been analyzed and the same will be examined during the final hearing: Pre deposit waived.

  • STO 2013 CESTAT 575
  • Business Auxiliary Service: Business Support Service: Activity of charging Carriage Fees is covered under Business Auxiliary Service: BSS not discussed as it was not in existence at the material time.

  • STO 2013 CESTAT 549
  • 'Business Support Services': Service merits classification under Rule 3(1)(iii) of the Export of Service Rules and if the services were rendered from India and consideration is received in convertible foreign exchange, then the transaction would amount to exports: On export of services, service tax liability is not attracted: Argument of the department that the appellant has repatriated the export proceedings by declaring dividends is unsustainable in law for the reason that declaration of dividends is out of the profits made by the appellant and has nothing to do with the exports undertaken by the appellant.

  • STO 2013 CESTAT 770
  • Business Support Service: Ocean freight & Air freight: freight charges towards ocean freight and air freight cannot be included in the value of Business Support Service and subjected to service tax under Finance Act, 1994: Stay granted.

  • STO 2013 CESTAT 479
  • Business Support Service: Refund allowed by original authority : Commissioner (Appeals) revised the order of lower authority allowing departmental appeal: Provisions of unjust enrichment and time limit applicable even on unconsitutioal levy: directions issued for partial pre deposit.

  • STO 2013 CESTAT 729
  • Business Support Service: Demand: Stay: Prima facie case not found for waiver from pre deposit: Applicants manufactured motors and supplied goods to their agents in Germany and Belgium: Directions issued for pre deposit.

  • STO 2013 CESTAT 673
  • Business Support Service: Supply of Tangible Goods: Stay: "Business Support Service" is in the nature of residual entry and cannot cover an activity, like making tangible goods available to another person which was subsequently covered by a specific entry: Stay granted.

  • STO 2013 CESTAT 365
  • Business Support Services: Includes services related to business or commercial and infrastructural support service. Infrastructural service includes providing of office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security: Appellants manufacture nitrogen on which they pay central excise duty, hence, not considered as Infrastructural Support: Pre deposit waived.

  • STO 2013 CESTAT 368
  • Business Support Service: Business Auxiliary Service: Appellants sharing the expenses of employees with the Group companies on actual basis: After May, 2006 they started paying service tax on this activity under BSS: Commissioner ordering classification under BAS without any giving specific findings: Matter remanded.

  • STO 2013 CESTAT 194
  • Supply of Tangible Goods: Demand: Stay: charter hiring of vessels merits classification under "supply of tangible goods for use" service and not under "mining service": Directions issued for pre deposit.

  • STO 2013 CESTAT 233
  • Supply of Tangible Goods: Demand: Stay: the transaction involved herein is "transfer of right to use" which is a deemed sale and not "supply of tangible goods for use service": Based on High Court’s judgment in Grasim case: Prima facie case made out for waiver from pre deposit.

  • STO 2013 CESTAT 629
  • Business Support Service: Renting of Immovable Property: prima facie the charges collected by the appellant from its licensee are in the nature of rent: Pre deposit waived.

  • STO 2013 CESTAT 209
  • Support Service for Business or Commerce: When a customer purchases a car from dealers and services are rendered in relation thereto, it cannot be said that the services has been rendered in relation to business or commerce.

  • STO 2013 CESTAT 186
  • Business Support Service: Demand confirmed on the ground that appellants provided services to BCCI: Argument on availability of Cenvat credit to the appellants in the eventuality of payment of service tax by them considered as ground for granting stay from recovery.

  • STO 2013 CESTAT 243
  • Business Support Service: Department’s view that department was of the view that the amounts received from BCCI by Vidarbha Cricket Association (VCA) is for providing infrastructure support to BCCI for conducting tournaments and, therefore, the same is classifiable under the category of 'Business Support Services': No evidence led by the Revenue to show that the services have been rendered in relation to business or commerce.

  • STO 2013 CESTAT 147
  • Demand : Stay: 'managing distribution and logistics' would get covered under "Business Support Services" and not under "Business Auxiliary Services": Directions issued for partial pre deposit.

  • STO 2013 CESTAT 101
  • Business Support Service: Service tax: Appellant is rendering assistance to their client in getting the motor vehicle registration done. The said activity, by no stretch of imagination, can be considered as supporting the business of their customers: Matter remanded back to Commissioner (Appeals) as the appeal was dismissed for non compliance. 

  • STO 2013 CESTAT 558
  • Business Support Services: Appellant asked to discharge service tax on additional amount received from BCCI for organizing IPL matches: Issue decided without going through the contracts or MOU entered between the two parties: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 38
  • Demand: Supply of Tangible Goods: Air Transport of Passengers: Whether operating helicopter on charter basis for transport of passenger would merit classification under ‘Air Transport of Passenger Service’ or under the category of ‘Supply of Tangible Goods for Use’ is a complicated and contentious issue: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 37
  • Demand: Stay: Ocean Freight: Services provided to SEZ: As regards ocean freight, it cannot be classified as "Business Support Service" and subjected to levy of service tax: In the matter of services rendered to the SEZ, the question is whether the services were consumed in SEZ or outside: The matter is to be looked into with reference to each of the services and how it was utilized and requires detailed examination: Directions issued for partial pre deposit.

  • STO 2012 CESTAT 759
  • Business Support Service: Income received from the franchisees for promoting their business: a debatable issue both on merits & limitation: Looking to other two decisions of co-ordinate bench where service tax demand was upheld in respect of foreign players under reverse charge mechanism: Directions issued for partial pre deposit.

  • STO 2012 CESTAT 586
  • Demand: Stay: Rent-a-cab service: Business Support Service: Transportation of the employees from their residence to factory premises or vice versa, could be in relation to the business of the said M/s. Welspun India Limited of manufacturing activity: Directions issued for making pre deposit. 

  • STO 2012 CESTAT 579
  • Business Support Service: Renting of office space to the caterer/book maker is not liable to be classified as “business support service”.

  • STO 2012 CESTAT 448
  • Business Support Services v/s Renting of Immovable Property: Stay : Appellants transferred various buildings, land, etc, to SWIPL under lease deeds, etc: Service covered under BSS: Applicants directed to make pre deposit.

  • STO 2012 CESTAT 433
  • Business Auxiliary Service v/s Business Support Service: Appellants collecting Passenger Service Fees from passengers on behalf of AAI: Service covered under BSS and not under BAS: Stay granted.

  • STO 2012 CESTAT 388
  • Business Support Service: creation of database for the appellant's employees and the tracking of the telephone calls made by those employees, by the foreign companies, answered the description "services provided in relation to business or commerce.: Matter remanded subject to pre deposit of Rs.90 lakhs by the appellants.

  • STO 2010 CESTAT 615
  • Service Tax: Business Auxiliary Services / Business support service: Show cause notice do not specify exact classification: No demand can be confirmed against any person towards service tax liability unless he/it is put on notice as to its exact liability under the statute. In the show-cause notice basic to the proceedings, the impugned activities were proposed to be classified under BAS and BSS. This proposal was confirmed by the Original Authority. This order is not in accordance with the law. The impugned order held that UTL provided services on behalf of the client i.e. Director, e-Seva and sustained the demand. Under BAS, there are seven sub-clauses. Demand under sub-clause (vii) could be on activities relatable to either one of the preceding six sub-clauses. Therefore, if a notice issued proposing demand under BAS, the notice will not be aware to the precise ground on which tax is proposed to be demanded from him unless the sub-clause is specified. In the instant case, service tax was proposed to be demanded for an activity under BAS and BSS. Under BSS also several activities are listed as exigible under that head. In the absence of proposal in the show-cause notice as to the liability of the assessee under the precise provision in the Act, we find the demand to be not sustainable.(Para 6). Accordingly, the demand and penalties imposed on the appellants is vacated and allow this appeal.(Para 7). 

  • STO 2009 CESTAT 1153
  • Service Tax: Waiver of penalties: Tribunal in an identical issue in the case of Wings Group of Companies vs. Commr. of S.T., Bangalore, reported in STO 2007 CESTAT 1439 while deciding the stay application observed that activity of arranging loan and receiving commission would come within the purview of "Business Support Services" effective from 1.5.2006 and not under "Business Auxiliary Services". Thus, it is clear that there was doubt on the levy of tax on the said activity. Hence, the Commissioner (Appeals) rightly set aside the penalties invoking Section 80 of the Act.(Para 3).

    Revenue appeal dismissed.

  • STO 2008 CESTAT 581
  • Service Tax: Business support service: Scope and liability: There is no dispute that the appellant is providing service by arranging the transmission of electric energy in the manner that the transmission losses are minimal and energy of suitable voltage reaches the distribution points owned by DISCOMS and they are ultimately sold to various consumers. It is to be kept in mind that unlike other goods, electricity cannot be stored and, therefore, has to be instantly transmitted to various points to facilitate distribution. Having considered the nature of the functions performed by the appellant within the frame work of the agreement and in the light of the provisions of the Electricity Act, the services provided by the appellant are services in relation to support service of business or commerce. It may be noted that the expression “in relation to” occurs not only in sub-clause (zzzq), it also occurs in clause (104c). The words ‘in any manner’ in sub-clause (zzzq) also signify the legislative intent to include services provided “in any manner” by the provider of service. The expression ‘in relation to’ is used by the legislature to widen the scope and dimension of the subject, in order to establish a greater nexus between the activity and the service implicit in the activity. The Supreme Court had occasion to consider the import of expression ‘in relation to’ in the case of Doypack Systems (Pvt.) Ltd. v. Union of India, STO 1988 SC 13,(Para 12,13,14).

    Pre-deposit ordered, stay rejected.

  • STO 2007 CESTAT 1439
  • Business Support Service: Activity carried out by the appellant do not come within the ambit of ‘Business Auxiliary Services’ but would come within the ambit of ‘Business Support Services’ which has come into effect on 1-5-2006. Since issue covered by decision of Tribunal. Full waiver granted.

  • STO 2007 CESTAT 1258
  • Business Support Service: Verification of the details given by the loan seekers for ICICI cannot be treated as promoting their business. The services rendered by the applicants would be rightly classifiable as "Business Support Service" which came into taxable net only w.e.f. 1-5-2006.

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