Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Dilip Gupta (President) and PV Subba Rao (Technical Member) allowed the appeals which were filed to assail the order dated 25-07-2014 by which the two show cause notices dated 14-06-2012 and 15-03-2013 had been adjudicated upon and service tax amounting to Rs. 2,02,31,146/- had been confirmed under section 73(1) of the Finance Act, 19941 with interest and penalty.
The issue involved in these two appeals related to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.
According to the appellant, no price is charged for accessing this website and any individual can access this website and gain information on movies that are being exhibited or would be exhibited in PVR cinemas. The customers who book tickets online through the website or through mobile phones electronically are required to pay an amount of INR 5/- to INR 25/- per ticket over and above the value of tickets. The appellant received a show cause notice dated 14-06-2012 for the period 01-04-2007 to 31-12-2011 alleging that the “convenience fee” charged by the appellant on its customers for booking the tickets online through the website was eligible to service tax under “OIDAR” but the appellant did not deposit service tax. The show cause notice also invoked the extended period of limitation and created a demand of Rs. 1,70,93,379/- with penalty and interest. The appellant submitted that convenience fees was charged for the convenience provided to the customers for booking the tickets online rather than physically standing in the queue; and that the fees charged was only to recover the cost of infrastructure and bank charges.
The Commissioner confirmed the demand of service tax on convenience fee under the taxable service of “OIDAR‟ primarily on the reasoning that the appellant provided online information to the ticket buyer on payment of monetary consideration called „convenience fee‟ and, therefore, the claim made by the appellant that the information was provided free of cost is not true. The Commissioner also noted that the payment of the tickets were made through debit/credit card and after processing the same a booking number was allotted to customers through emails sent via computer network. The Commissioner, therefore, concluded that there was a two way transfer of data/information. The Commissioner also observed that mere suppression of facts was enough for invoking the extended period of limitation and it was not necessary that there should be an intent to evade payment of service tax.
The issue before the Tribunal was regarding the taxability of “convenience fee” charged by the appellant on its customers for online booking of movie tickets under OIDAR category under section 65(105)(zh) of the Finance Act.
The Tribunal discussed all the cases in detail relied on by the counsels and concluded that even when an assessee has suppressed facts, the extended period of limitation can be invoked only when “suppression‟ is shown to be wilful with intent to evade the payment of service tax.
The Commissioner, therefore, fell in error in first observing that the appellant had suppressed information from the Department relating to collection of convenience fees and then holding that mere suppression of facts was enough for invoking the extended period of limitation. As noticed above, even suppression of facts has to be wilful and in any case, suppression has also to be with an intent to evade the payment of service tax. There is no finding by the Commissioner as to whether suppression of facts was wilful and in the context of intent, the Commissioner held that there is no necessity that suppression of facts has to be with an intent to evade the payment of service tax.
The confirmation of demand of service tax of Rs. 1.27 crores on convenience fees for the period commencing 01-04-2007 to 31-03-2011 was beyond the prescribed period of one year contemplated under section 73(1) of the Finance Act and, therefore, this demand deserved to be set aside.
While answering the question as to whether the convenience fees that is charged by the appellant from each user over and above the prescribed value of the movie ticket can be subjected to service tax under OIDAR the Tribunal referred to the Terms & Conditions for purchase of a movie ticket and held that when a user accesses and uses the website he agrees to be bound by the terms and conditions. The Tribunal observed that conjoint reading of the clauses of the Terms & Conditions of the contract would indicate that the purpose for charging convenience fee is to receive a consideration for offering a facility of online booking and in the facts of the present case would relate to online booking of tickets.
It needs to be remembered that any person who visits the website of the appellant to seek information about the show timings or like information does not have to make any payment and it is only when a ticket is booked online that convenience fee is required to be paid by the user. The substance of the transaction is, therefore, to book a ticket online and thereby engage in e-commerce. It cannot, therefore, be said that convenience fee is charged for any access/retrieval of information or database as contemplated under OIDAR service.
The Tribunal reached an inevitable conclusion that convenience fee is not charged by the appellant for any access/retrieval of information or database. Service tax under OIDAR cannot, therefore, be levied upon the appellant for the period prior to 01-07-2012. The appellant had stated that it started discharging service tax on convenience fees under the negative list regime after July 1, 2012, under the category of “other taxable services” so the confirmation of demand of service tax of Rs. 1.27 crores for the period 01-04-2007 to 31-03-2011 out of the total demand of Rs 2,02,31,146/- covered under the two show cause notices dated 14-06-2012 and 15-03-2014 cannot also be sustained for the reason that it is for a period beyond the prescribed period of one year contemplated under Section 73(1) of the Finance Act and the extended period of limitation could not have been invoked.[PVR Ltd. v. Commr. Of Service Tax, 2021 SCC OnLine CESTAT 328, decided on 05-07-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
Advocates for the Appellant: Shri Sujit Ghosh and Ms Pragaya Awasthi
Authorized Representative for the Respondent: Dr. Radhe Tallo