According to the Supreme Court, providing group corporations with corporate guarantees without payment is not a taxable service.
As there is no consideration involved, no service tax will be imposed on the corporate guarantees provided by a parent firm to its subsidiaries, according to the division bench of Justices Hrishikesh Roy and Manoj Misra.
The assessee, M/s Edelweiss Financial Services Ltd., was the subject of legal action because it had given a “corporate guarantee” on behalf of its subsidiaries in India and abroad. The department has contested the dismissal of those legal actions. The non-discharge of tax due as a supplier of “banking and other financial services for the period before to and after June 30, 2012” has been contested by the department.
For taxable services rendered under Section 65(105)(zm) of the Finance Act of 1994, up until June 30, 2012, and for services rendered under Section 65B(44) for the subsequent period, up until March 15, 2015, the show cause notice had proposed the recovery of Rs. 97,956,437, consisting of guarantees to foreign companies for which consideration had been received and guarantees provided free of charge to their Indian subsidiaries.
The adjudicating body had determined that it was not taxable to accept commission from foreign businesses in exchange for the export of services. As as domestic facilitation was concerned, corporation guarantee was not included in the definition in Section 65(12) of the Finance Act of 1994 because, unlike “bank guarantee,” it was not specifically included as one of “other financial services” until June 20, 2012. The absence of “consideration” for providing a corporate guarantee for the next time disqualified these acts from falling under the definition of “service” in Section 65B(44) of the Finance Act of 1994.
The CESTAT determined that the adjudicating authority had correctly interpreted the criticality of “consideration” for determining service, as specified in Section 65B(44) of the Finance Act of 1994, during the disputed period following the implementation of the negative list system of taxes. Each action must demonstrate not only the relationship between one “provider” and another for the purposes of taxability under the Finance Act of 1994, but also the flow of “consideration” for the provision of the service. Taxability under Section 66B of the Finance Act of 1994 will not arise in the absence of one or both of these two components. Insofar as the “corporate guarantee” made by respondents on behalf of their subsidiary firms is concerned, it is obvious that there is no consideration.
HARDIK SHARMA, B.COM LL.B 8TH SEM.
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