Background Study Material on Service Tax

Transcription

1 Background Study Material on Service Tax CA Bimal Jain FCA, FCS, LLB, B.Com (Hons.) F-30/31/32, Pankaj Grand Plaza, MayurVihar Phase-1,Delhi Mobile: Website:

2 INDEX Sl. No. Chapters Page No. 1 Introduction to Service Tax 2 2 Applicability of Service Tax Charge of Service Tax 6 4 Negative List Declared Services Bundling of Services Determination of Place of Provision of Services Reverse Charge Mechanism Exemptions and abatements Valuation of Taxable Services Export of service Point of Taxation Rules Works Contract Services 1

3 Chapter 1 Introduction to service tax Services are one of the major contributors to the development of economy. As per the latest Economic Survey, the services sector has made a major contribution to the Indian Economy, growing by 8% annually and contributing to about quarter of employment. Tax on services was first introduced in the year 1994, through the insertion of Chapter V in the Finance Act, 1994 ( the Finance Act ) and levy was confined to three services. Since then, the Finance Act has been amended every year to bring in more services into the tax net and had 119 services in the tax net till June 30, The Finance Act, 2012, w.e.f. 1st July, 2012 has introduced comprehensive approach for levy of service tax to tax services based on what is popularly known as Negative List of Services. It means, if any activity meets the characteristics of a service, it is taxable unless specified in the negative list or otherwise exempted by the mega exemption notification. The negative list comprises of 17 services which are listed in the Section 66D of the Finance Act. 2

4 Chapter 2 - Applicability of Service Tax Section 64 of the Finance Act deals with the applicability of levy and provides that service tax will extend to whole of India, except the state of Jammu & Kashmir. Some important definitions under section 65B of Finance Act are as follows- (i) "India" means,- (a) the territory of the Union as referred to in clauses (2) and (3) of article 1 of the Constitution; (b) its territorial waters, continental shelf, exclusive economic zone or any other maritime zone as defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976; (80 of 1976.) (c) the seabed and the subsoil underlying the territorial waters; (d) the air space above its territory and territorial waters; and (e) the installations, structures and vessels located in the continental shelf of India and the exclusive economic zone of India, for the purposes of prospecting or extraction or production of mineral oil and natural gas and supply thereof. [65B (27)] (ii) "Taxable territory" means the territory to which the provisions of this Chapter apply. [65B(52)] Hence, the taxable territory covers whole of India except the state of Jammu & Kashmir. (iii) Non-taxable territory means the territory other than the taxable territory. [65B(35)] In view of the above, the services provided within the territorial limits of the state of Jammu & Kashmir will not be liable to service tax irrespective of whether the service provider is residing in that state or not. However, any person residing in the state of J & K providing services in other parts of country would be liable to service tax, whereas, the person having office in other part of country other than J & K and providing service in J & K, would not be liable to pay service tax. (iv) "Service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or 3

5 (ii) such transfer, delivery or supply of any goods which is deemed to be sale within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force. Explanation 1.- For the removal of doubts, it is hereby declared that nothing contained in this clause shall apply to,- (A) the functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) the duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) the duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or State Governments or local authority and who is not deemed as an employee before the commencement of this section. Explanation 2. - For the purposes of this clause, transaction in money shall not include any activity relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged. Explanation 3.- For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4.- A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; 4

6 Chapter 3 Charge of Service Tax During the period prior to , the charging of service tax was provided in Section 66 which provided that 12% service tax leviable on the taxable services referred in various subclauses of Section 65(105) which contained all the definitions of taxable services of about 121 services. Consequent to the amendments made by Finance Act, 2012 which ushered in Negative List of Taxation of services w.e.f., , a new charging provision is contained in Section 66B of the Finance Act which provides that a tax referred to as Service Tax shall be levied at the rate of 12% of the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Therefore, it is clear that w.e.f , all those activities which get covered under the definition of service as per Section 65B(44) would be liable to service tax at 12% ad valorem with exception of those services which are contained in Negative List. 5

7 Chapter 4 - Negative List The term Negative List is defined in Section 65B (34) to mean the services which are listed in section 66D. Therefore, we have to refer to the list of services stipulated in Section 66D as being Negative List of services which are excluded from service tax levy under Section 66B. The following are the negative list of services stipulated under Section 66D: (a) Services provided by Government or local authority: Under this entry all services provided by the Government or local authority would get covered except the following services: (i) services by the Department of Posts by way of speed post, express parcel post, life insurance and agency services provided to a person other than Government; (ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport; (iii) transport of goods or passengers; or (iv) support services, other than services covered under clauses (i) to (iii) above, provided to business entities; (b) (c) (d) Services by the Reserve Bank of India: Services by a foreign diplomatic mission located in India: Services relating to agriculture: Services relating to agriculture by way of- (i) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or testing; (ii) supply of farm labour; (iii) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter the essential characteristics of agricultural produce but make it only marketable for the primary market; (iv) renting or leasing of agro machinery or vacant land with or without a structure incidental to its use; (v) loading, unloading, packing, storage or warehousing of agricultural produce; (vi) agricultural extension services; (vii) services by any Agricultural Produce Marketing Committee or Board or services provided by a commission agent for sale or purchase of agricultural produce; 6

8 (e) (f) Trading of goods: Any process amounting to manufacture or production of goods: The phrase process amounting to manufacture or production of goods is defined in Section 65B(40) as follows: (40) "process amounting to manufacture or production of goods" means a process on which duties of excise are leviable under section 3 of the Central Excise Act, 1944 or any process amounting to manufacture of alcoholic liquors for human consumption, opium, Indian hemp and other narcotic drugs and narcotics on which duties of excise are leviable under any State Act for the time being in force; Therefore, any activity would amount to manufacture or production of goods which is leviable for duty of excise or state excise as the case may be would get covered under this entry of negative list and would get excluded from service tax levy. (g) Selling of space for advertisement in print media For the purpose of understanding the term advertisement is defined in Section 65B (2) as follows: "advertisement" means any form of presentation for promotion of, or bringing awareness about, any event, idea, immovable property, person, service, goods or actionable claim through newspaper, television, radio or any other means but does not include any presentation made in person. Further the term print media is defined in Section 65B (39a) as follows: (39a) print media means, (i) book as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867, but does not include business directories, yellow pages and trade catalogues which are primarily meant for commercial purposes; (ii) newspaper as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867; Provision prior to 1 st October, 2014 [(g) selling of space or time slots for advertisements other than advertisements broadcast by radio or television;] (h) Service by way of access to a road or a bridge on payment of toll charges: All payments of toll charges for access of a road or a bridge get covered under this entry 7

9 and therefore would get excluded from service tax. It should be noted that all toll charges collected for access to National Highways or State Highways would also get covered under this entry and therefore not liable to service tax. But the services provided by a toll collecting agency to authorities such as National Highway Authority is not covered under this entry. (i) Betting, gambling or lottery: All activities relating to betting, gambling or lottery would not be liable to services as they are specifically covered under this entry. As regards the phrase betting or gambling, the same has been defined in Section 65B (15) as follows: "betting or gambling" means putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring. (j) Admission to entertainment events or access to amusement facilities: Under this entry, any amount collected towards admission to entertainment events or access to amusement facilities would be excluded from service tax levy. (k) Transmission or distribution of electricity by an electricity transmission or distribution utility: transmission or distribution of electricity provided by electricity transmission or distribution utility would get covered under the negative list of services and therefore not liable to service tax. (l) Educational services: Under this entry, the services by way of- (i) Pre-school education and education up to higher secondary school or equivalent; Under this education starting from pre-school up to higher secondary school is excluded from levy of service tax. (ii) Education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force: 8

10 All Educational services which is a part of curriculum and which results in qualification recognized by any law for the time being in force would get covered under this entry. Hence, conduct of degree courses by colleges, universities or institutions which lead grant of qualifications recognized by law would be excluded from service tax levy. However, the training given by private coaching institutes would not be covered as such training does not lead to grant of a recognized qualification. (iii) Education as a part of an approved vocational education course The term approved vocational education course has been defined in Section 65B as follows: (11) "approved vocational education course" means,- (i) a course run by an industrial training institute or an industrial training centre affiliated to the National Council for Vocational Training or State Council for Vocational Trainingoffering courses in designated trades notified under the Apprentices Act, 1961; or (ii) a Modular Employable Skill Course, approved by the National Council of Vocational Training, run by a person registered with the Directorate General of Employment and Training, Union Ministry of Labour and Employment. Therefore, the education provided as part of approved vocational education course only get excluded under this entry and any other vocational course would not be entitled for exemption. (m) Services by way of renting of residential dwelling for use as residence: Under this entry, renting of residential dwelling which is used as residence is excluded from service tax levy. (n) Financial Services by way of- (i) (ii) extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount. However, if any administrative charges are also collected along with interest or discount, then such charges would not get covered under this entry and therefore would be liable to service tax. inter se sale or purchase of foreign currency amongst banks or authorized dealers of foreign exchange or amongst banks and such dealers 9

11 The exclusion under this entry only covers sale and purchase of foreign exchange between banks or authorized dealers of foreign exchange or between banks and such dealers. (o) Services relating to transportation of passengers: Service of transportation of passengers, with or without accompanied belongings, by- (i) A stage carriage; (46) "stage carriage" shall have the meaning assigned to it in clause (40) of section 2 of the Motor Vehicles Act, 1988; (59 of 1988.) Stage Carriage is defined under Section 2 (40) which reads as follows: stage carriage means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey; (ii) Railways in a class other than (A) first class; or (B) an air-conditioned coach; Under this entry, all transportation of passenger by Railways except that of first class or an air conditioned coach would be excluded from service tax levy. (iii) Metro, monorail or tramway; All transportation of passenger service provided by Metro, monorail or tramway would be excluded from service tax levy. (iv) (v) (vi) Inland waterways, Public transport, other than predominantly for tourism purpose, in a vessel between places located in India; and Metered cabs, or auto rickshaws; The services of transportation of passengers provided by metered cabs, or auto rickshaws is excluded from service tax levy i.e. Radio Taxi chargeable to Service tax w.e.f Provision prior to 1 st October, 2014 [(vi) metered cabs, radio taxis or auto rickshaws;] (p) Service relating to transportation of goods: 10

12 Services by way of transportation of goods- (i) by road except the services of- (A) a goods transportation agency; or (B) a courier agency: All services by way of transportation of goods is excluded from service tax levy with the exception of goods transportation agency and courier agency. (ii) by an aircraft or a vessel from a place outside India to the first customs station of landing in India; or (iii) by inland waterways Similar to transportation of passengers by inland waters, the transportation of goods by inland waters is also excluded from service tax levy. (q) Funeral, burial, crematorium or mortuary services including transportation of the deceased. Under this entry all services relating to funeral, burial, crematorium or mortuary would get excluded from service tax. Further, the transportation of the deceased is also covered under this negative list. 11

13 Chapter 5 Declared Services Section 65B(22) "declared service" means any activity carried out by a person for another person for consideration and declared as such under section 66E; Section 66E of the Finance Act, 2012 contains the list of nine activities that have been declared to be services. The said section reads as under: Declared Services Section 66E lists the following as being declared services: (a) Renting of immovable property; Under the Negative List Taxation of Services w.e.f., , all types of renting of immovable property would be liable to service tax as being a Declared Service. It is relevant to note that prior to , the renting of immovable property was leviable to service tax only if the renting was for use in the course of or for furtherance of, business or commerce. (b) Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion certificate by the competent authority. Construction services under the new regime is a combination of two heading of old regime (a) Construction service was already taxable as part of construction of residential complex service under Section 65(105) (zzzh); and (b) Service in relation to commercial or industrial construction under Section 65(105) (zzq) of the Act. However, under the new entry under declared services, both the above referred headings have been combined with the following changes: - Requirement of more than 12 residential units in a residential complex has been removed. Now any building with more than one residential unit could be termed as residential complex. - Reference to commercial or industrial construction has been omitted 12

14 Hence, all types of construction of buildings would get covered under this heading with exception of where the entire consideration is received after issuance of completion certificate by the competent authority. Explanation (I) defines competent authority as follows: Explanation II to the above heading provides that the expression "construction" includes additions, alterations, replacements or remodeling of any existing civil structure; The above explanation expands the scope of the definition of construction to include addition, alteration, replacements or re-modeling of any existing civil structure. (c) Temporary transfer or permitting the use or enjoyment of any intellectual property right; Intellectual property right has not been defined in the Act. The phrase has to be understood as in normal trade parlance as per which intellectual property right includes the following: Copyright Patents Trademarks Designs Any other similar right to an intangible property Only temporary transfer of IPR is liable service tax under this heading and therefore all permanent transfers would get excluded from service tax levy. (d) Development, design, programming, customisation, adaptation, upgradation, enhancement, implementation of information technology software; The phrase information technology software is defined in Section 65B as follows: (28) "information technology software" means any representation of instructions, data, sound or image, including source code and object code, recorded in a machine readable form, and capable of being manipulated or providing interactivity to a user, by means of a computer or an automatic data processing machine or any other device or equipment. (e) Agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act; This entry is unique one in the Declared Services wherein the following activities done by one person to another person for consideration would be termed as declared service : 13

15 Agreeing to the obligation to refrain from an act. Agreeing to the obligation to tolerate an act or a situation. Agreeing to the obligation to do an act. It is interesting to note this entry also covers those transactions where one party agrees to tolerate an act or situation for a consideration. (f) Transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods; It is relevant to note that transfer of right to use the goods is one of the transaction of deemed sale as per clause (d) of article 366(29A) of the Constitution. What is sought to be termed as declared services is that aspect of transaction where the goods are transferred by way of hiring, leasing, licensing etc.without involving transfer of right to use such goods. (g) Activities in relation to delivery of goods on hire purchase or any system of payment by installments; It is clear from the definition of service in Section 65B(44) that all deemed sale as per article 366(29A) of the Constitution of India is excluded from the purview of service. As per clause (c) of Article 366(29A) of the Constitution of India, the delivery of goods on hire purchase or any system of payment on instalment is a deemed sale, hence such transactions are not covered under the definition of service. However, under this entry, the activities or services provided in relation to such delivery of goods on hire purchase or on instalment payment are sought to be covered. (h) Service portion in the execution of a works contract; Works Contract is one of the transaction which is covered under deemed sale under Article 366(29A) of the Constitution of India. However, only service portion in execution of a works contract is specified as declared service. In this context, the term works contract is defined in clause (54) of Section 65B: Section 65B (54) "works contract" means a contract wherein transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods and such contract is for the purpose of carrying out construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, alteration of any 14

16 movable or immovable property or for carrying out any other similar activity or a part thereof in relation to such property; It is clear from the above that the new definition of works contract is similar to the definition contained in VAT laws of various states wherein contract includes transfer of property in goods along with provision of services for certain specified activities in relation to both movable and immovable properties. It is relevant to note that only if the said transaction is a composite contract on the basis that service aspect is inextricably linked to the sale of goods and the actual amount towards the element of services cannot be segregated on the basis of documents available, then the nature of such transaction would be determined by the application of the dominant nature test laid down by the Supreme Court in BSNL vs. UOI 2006 (2) STR 161 (SC). (i) Service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity. It is relevant to note that the transaction of supply of food or beverages is covered under Article 366(29A) of the Constitution of India wherein supply of any goods, being food or any other article of human consumption or any drink (whether or not intoxicating) in any manner as part of a service for cash, deferred payment or other valuable consideration is deemed to be a sale of such goods. In view of the above, what is being declared as service under this entry is the service portion of this transaction wherein food or any other article of human consumption or any drink is subjected to service tax. In view of the provisions of Article 366(29A) of the Constitution of India, in the above referred transaction, it cannot be termed as service to the extent of the value of goods so supplied. The remaining portion however constitutes a service. As held by the Supreme Court in BSNL s case [2006(2)STR161(SC)], a catering contract involves provision service along with supply of such goods can be dissected into a contract of sale of goods and contract of provision of service. 15

17 Chapter 6 - Bundling of services The term bundled service is defined in the Explanation to Section 66F to mean a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services. Section 66F and relevant provisions is set out below: 66F. (1) Unless otherwise specified, reference to a service (herein referred to as main service) shall not include reference to a service which is used for providing main service. (2) Where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. (3) Subject to the provisions of sub-section (2), the taxability of a bundled service shall be determined in the following manner, namely:- (a) if various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character, Example:-A Tour Operator provides a package tour to his clients which includes transportation, accommodation at a hotel and local sight-seeing. This is a natural bundling of services in the ordinary course of business. The service of the tour operator gives the bundle the essential character and would, therefore, be treated as service of providing tour operator and therefore the exemption relating to hotel accommodation up to Rs.1,000/- cannot be claimed. (b) if various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service tax. Explanation.- For the purposes of sub-section (3), the expression "bundled service" means a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services. If various elements of a bundled service are not naturally bundled in the ordinary course of business, it shall be treated as provision of a service which attracts the highest amount of service tax. Example: 16

18 A house is given on rent wherein first floor of is used as residence and the ground floor of the house is as office by a Chartered Accountant. In such a situation, the renting to Chartered Accountant one for residence and another for Office is not naturally bundled in the ordinary course of business. Therefore, if a single rent deed is executed it will be treated as a service comprising entirely of such service which attracts highest liability of service tax. As the renting for use as residence is excluded from service tax under negative list, while the renting for office (non-residence) use is chargeable to tax. As the renting for office attracts service tax being the highest liability amongst the two services bundled together, the entire bundle would be treated as renting of commercial property and liable to service tax. 17

19 Chapter 7 Determination of Place of provision of service The Place of Provision of Service Rules, 2012issurmised as under: - Nature of services / activities Rule No. Place of provision /or Summary of the Rules Order of Application of the rules 14 Where prima facie, service falls under more than one rule, then rule that occurs later among the rules that merit equal consideration Place of provision in general. This 3 Location of the recipient of service. would be applicable where Where location of service receiver is not service does not fit into any other determinable in ordinary course of business, rule then location of service provider would be taken. Services in respect of goods that are required to be made physically available by the service receiver to the service provider, in order to provide the service Where services in relation to goods are provided through internet other electronic mode Where goods are temporarily imported into India for repairs and are exported after the repairs without being put to any use in the taxable territory, other than that which is required for such repair; 4(a) Proviso to 4(a) Proviso to 4(a) Place of performance of service. Ex: Loading, unloading, Cargo handling, CHA services, technical inspection, certification, maintenance services etc. Then location of goods at the time of provision of service Place of provision is not where goods are located or service or performed. Rule 3, i.e. general rule has to be applied. Prior to the October 1, 2014: Where goods are temporarily imported into India for the purpose of repairs, reconditioning or re-engineering for re-export. Services provided entirely or predominantly in the physical presence of an individual (recipient of service or his agent/ representative) Services directly in relation to immovable property 4(b) Location where actual services are actually performed 5 Location of immovable property present or proposed. 18

20 Nature of services / activities Other service provided in relation to immovable property Admission to or organization of event Ancillary services relating to events Provision of services at more than one location Where both recipient of service and provider is located within taxable territory. Rule No. Place of provision /or Summary of the Rules 5 Location of immovable property present or proposed. This rule specifically covers, Experts Estate agents, Hotel accommodation services, Right to use immovable property for carrying out construction, Architect, Interior decorator etc. 6 Place where the event is held. Nature of events covered: Cultural, artistic, sporting, scientific, educational, or entertainment event, or a celebration, conference, fair, exhibition, or similar events, 7 When this rule would apply: Performance of services covered under Rule 4, 5 and 6 at more than one location and out of such locations at least one shall be in non-taxable territory. What is the place of provision of service: Location in the taxable territory where the greatest proportion of the service is provided. 8 When this rule would apply: where service fall under Rule 4 to 6, but both provider and recipient are located in India only. What is the place of provision of service: Location of the recipient of service Services by a banking company, or a financial company, or a nonbanking financial company to account holders Online information and database access or retrieval services This ensures that mere performance of service outside India or location of property (goods or immovable property) outside India does not make the services non-taxable. 9 Location of service provider Account: Means an account bearing interest to the depositor, and includes a non-resident external account and a non-resident ordinary account. 9 Location of service provider Online database : Providing data or information, retrievable or otherwise, to any person, in electronic form through a computer network Intermediary services 9 Location of service provider 19

21 Nature of services / activities Rule No. Place of provision /or Summary of the Rules Definition of the Intermediary services amended by the Notification No 14/2014 dated July 21, 2014 with effect from October 1, 2014 Intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (main service) or a supply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account Provision prior to October 1, 2014 Intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of service between two or more persons. Service consisting of hiring of all means of transport other than (a) Aircraft 9 Location of service provider (b) Vessels except yachts, up to a period of one month Provision prior to October 1, 2014 (d) Service consisting of hiring of means of transport, upto a period of one month Transport of Goods by GTA 10 Location of person liable to pay service tax as defined in Rule 2(1) (d) of Service Tax Rules, 1994 Transport of Goods by person other than GTA 10 Destination of goods- This rule covers Air transport, sea mode of transport Passenger transport 11 Place where the passenger embarks on the conveyance for a continuous journey continuous journey a journey for which a 20

22 Nature of services / activities Rule No. Place of provision /or Summary of the Rules single or more than one ticket or invoice is issued at the same time, either by one service provider or through one agent acting on behalf of more than one service provider, and which involves no stopover between any of the legs of the journey for which one or more separate tickets or invoices are issued. On board of conveyance during transportation of passengers Leg of Journey: Part of the journey that begins where passengers embark or disembark the conveyance, or where it is stopped to allow for its servicing or refueling, and ends where it is next stopped for any of those purposes 12 First scheduled point of departure of such conveyance for the journey Includes services wholly or partly consumed on board 21

23 Chapter 8 Reverse Charge Mechanism It shall be noted here that Section 68(1) of Finance Act provides that the service provider shall be the person liable to pay service tax. However, Section 68(2) empowers the Government to notify services wherein instead of the service provider, the prescribed person (generally the recipient of service) would be termed as the person liable to pay service tax. This could be termed as reverse charge mechanism which was in vogue for the past few years, however, its applicability was restricted to few services like Goods Transport Agency, Sponsorship Services and import of services as well as other specified services. Further, a new proviso was inserted to Section 68(2), wherein a new concept of joint charge mechanism or Partial reverse charge has been introduced and the same was operationalized by the Central Government by way of notification consequent to enactment of Finance Act, Consequent to the above change, a suitable amendment has also been made in the concept of person liable to pay provided in Rule 2(1)(d) of Service Tax Rules, This amendment puts the onus of payment of service tax on reverse charge basis partly on the service provider and partly on the service receiver. The manner and extent of service tax payable by the service provider and service receiver in the case of various services have been specified vide Notification No. 30/2012 dt and is as follows: Nature of service Provider Recipient Person liable Percentage payable by Recipient Insurance agency Insurance agent Any person carrying an insurance business Recipient 100% Recovery agents services Inserted vide Notification No 10/2014-ST-dated July 11, 2014 Recovery agent Banking company or non banking financial company or financial institution Recipient 100% Transportation of goods by road GTA Specified personlocated in taxable territory Such specified person being recipient 100% 22

24 Others GTA NIL Other than GTA Not liable (See Negative list) NIL Sponsorship services Any person Body corporate or partnership firm in taxable territory Any Person Other than above Provider Recipient 100% NIL Arbitral tribunal Arbitral tribunal Business entity Recipient 100% Others Exempt NIL Individual advocate or Firm of advocates Business entity Recipient 100% Legal services Others including other advocate or firm of advocates Exempt NIL in respect of services provided or agreed to be provided by Government or local authority by way of support services excluding,- (1) renting of immovable property, and (2) services specified in sub-clauses (i), (ii) and (iii) of clause (a) of section 66D of the Finance Act. Government or local authority Business Entity Recipient 100% Director s Services to the company or body corporate Director of company or Company or body corporate Recipient Company or 100% 23

25 The word Body Corporate incorporated by the Notification No 10/2014-STdated July, body corporate body corporate Any taxable service Located in non-taxable territory Located in taxable territory Recipient 100% Service Tax liabilities of Service Provider and Service Recipient under Joint Charge Mechanism or Partial Reverse Charge Mechanism: Nature of service Provider Recipient Renting of motor vehicles designed to carry passengers - if abatement claimed Nil 100% - Where abatement is not claimed 50% (Prior to : 60%) 50% (Prior to : 40%) Supply of Manpower or Security Services 25% 75% Works contract 50% 50% 24

26 Chapter 9 Exemptions and abatements The various exemptions from service tax available under the current scheme of taxation are as explained hereunder. Exemptions under negative Service tax could be broadly categorized into following: a) Threshold exemption (also known as SSI benefit) b) Mega exemption covering various activities or services c) Services provided to SEZ units or developers d) Exemptions in relation to export of goods e) Other miscellaneous exemptions a) Threshold exemption (also known as SSI benefit) Notification No. 33/2012 ST dated states that taxable services of aggregate value not exceeding ten lakh rupees in any financial year would be exempt from service tax. The definition of aggregate value in the Notification aligns with Point of Taxation Rules, 2011 as follows: Explanation (B) aggregate value means the sum total of value of taxable services charged in the first consecutive invoices issued during a financial year but does not include value charged in invoices issued towards such services which are exempt from whole of service tax leviable thereon under section 66B of the said Finance Act under any other notification. Summary of the exemption Notification No. 33/2012-ST dt is as below: Value of services eligible Aggregate value not exceeding Rs. 10 Lakhs (Ten lakh) in any financial for exemption year What is aggregate value Value of taxable services charged in first consecutive invoices. Value of services which are not taxable as covered under negative list or exempted from whole of service tax under notification shall not be included When an assessee is eligible Where services are provided from more than one premises When this exemption is not available Where in the preceding financial year the aggregate value of taxable services does not exceed Rs. 10 Lakhs, in the current year assessee could avail exemption upto Rs. 10Lakhs Services provided from all such premises shall be clubbed together to compute exemption limit. a) Where services are provide under brand name or trade name of others b) Where service tax is payable under reverse charge or joint 25

27 Restrictions on availment of Cenvat Credit charge in terms of section 68(2) Cenvat credit shall not be availed on inputs, input services and capital goods received during the period when this exemption is availed. Cenvat credit relating to inputs lying in stock or in process on the date of availment of credit shall be reversed (if availed) In case of GTA provider Value of taxable service on which GTA is liable to pay tax shall be considered. Value on which other person in terms of section68(2) is liable shall be excluded. b) Mega exemption covering various activities or services Various exemption issued under different notifications have been unified (with certain additions and deletions) and brought under one single notification No. 25/2012-ST dated known as Mega exemption. The summary of the mega exemption is tabled below: *Sl No. Applicability / Nature Conditions and other aspects of services Services to UNO 1 Services provided to the United Nations or a specified international organization Health care services Health care services by clinical establishment or an authorized medical practitioner or para-medics. Definition of clinical establishment clinical establishment means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases 26

28 2A Recognized system of medicines in India Authorised practitioner Para-medics medical Services provided by cord blood bank 2B Services provided by operators of the Common Bio-medical Waste Treatment Facility to a clinical establishment Veterinary services 3 Healthcare services for animals or birds Charitable institutions 4 & 34 Entity registered under (b) section 12AA of the Income tax Act, 1961 Clinical Establishment (Registration and Regulation) Act, 2010: "recognised system of medicine" means Allopathy, Yoga, Naturopathy, Ayurveda, Homoeopathy, Siddha and Unani System of medicines or any other system of medicine as may be recognized by the Central Government authorised medical practitioner means a medical practitioner registered with any of the councils of the recognised system of medicines established or recognized by law in India and includes a medical professional having the requisite qualification to practice in any recognised system of medicines in India as per any law for the time being in force. Not defined in exemption notification. In terms of the guidance note, Para medics means Paramedics are trained health care professionals, for example nursing staff, physiotherapists, technicians, lab assistants etc. Services by them in a clinical establishment would be in the capacity of employee and not provided in independent capacity and will thus be considered as services by such clinical establishment. Similar services in independent capacity are also exempted. (a) Services in respect of preservation of stem cell or (b) any other services in relation to such preservation. (inserted by Notification No 4/2014-ST dated February 17, 2014) Services in respect of treatment or disposal of biomedical waste or the processes incidental thereto (Inserted vide Notification No.06/ Service Tax dated 11th July, 2014) Services provided by veterinary clinics are exempted. Term Veterinary clinics are not specifically defined. Services by way of charitable activities provided by such entities are exempted. 27

29 Services received from person located in non-taxable territory for the purpose of providing charitable activities Definition of Charitable activities: (i) public health by way of - (a) care or counseling of (i) terminally ill persons or persons with severe physical or mental disability, (ii) persons afflicted with HIV or AIDS, or (iii) persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or (b) public awareness of preventive health, family planning or prevention of HIV infection; (ii) advancement of religion or spirituality; (iii) advancement of educational programmes or skill development relating to,- (a) abandoned, orphaned or homeless children; (b) physically or mentally abused and traumatized persons; (c) prisoners; or (d) persons over the age of 65 years residing in a rural area; (iv) preservation of environment including watershed, forests and wildlife; or (v) advancement of any other object of general public utility up to a value of,- (a) eighteen lakh and seventy five thousand rupees for the year subject to the condition that total value of such activities had not exceeded twenty five lakhs rupees during ; (b) twenty five lakh rupees in any other financial year subject to the condition that total value of such activities had not exceeded twenty five lakhs rupees during the preceding financial year; Religious activity 5 5A Service exempt from tax are: a) Services of renting of precincts of a religious place meant for general public b) Conduct of religious ceremony Services by a Specified Organization Services by a specified organization in respect of a religious pilgrimage facilitated by the Ministry of External Affairs of the Government of India, under bilateral arrangement.(inserted by Notification No 17/2014-ST dated August 20, 2014) Legal services and services by Arbitral Tribunal Religious place means a place which is primarily meant for conduct of prayers or worship pertaining to a religion, meditation, or spirituality 6 Services of Arbitral Tribunal Exempt from tax if provided to following category of persons: a) person other than business entity. In other words receipt of services from arbitral tribunal by any person 28

30 Legal services for activity other than business or profession b) business entity with a turnover up to Rs. 10 Lac. in the preceding financial year Exempt from tax if provided to following category of persons: a) An advocate or partnership firm of advocates providing legal services b) Person other than business entity. In other words receipt of services from arbitral tribunal by any person for activity other than business or profession b) Business entity with a turnover up to Rs. 10 Lac. in the preceding financial year Testing or analysis of newly developed drugs: Exemption in respect of testing or analysis of newly developed drugs is withdrawn by the Finance Act (w.e.f. 11 th July 2014) 7 Services provider Clinical research organisation approved to conduct clinical trials by the Drug Controller General of India Education Nature of services exempt from tax Technical testing or analysis of newly developed drugs, including vaccines and herbal remedies, on human participants 9 Services provided: (a) by an educational institution to its students, faculty and staff; (b) to an educational institution, by way of,- (i) transportation of students, faculty and staff; (ii) catering, including any mid-day meals scheme sponsored by the Government; (iii) security or cleaning or house-keeping services performed in such educational institution; (iv) services relating to admission to, or conduct of examination by, such institution. Provisions prior to the amendment are as follows: - Following services provided to an educational institution in respect of education which is exempt from tax (other words educational activities covered under negative list) are exempt: (a) auxiliary educational services; or (b) renting of immovable property; auxiliary educational services means any services relating to imparting any skill, knowledge, education or development of course content or any other knowledge enhancement activity, whether for the students or the faculty, or any other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person, including services relating to admission to such institution, conduct of examination, catering for the students under any 29

31 mid-day meals scheme sponsored by Government, or transportation of students, faculty or staff of such institution 9A Any services provided bya) the National Skill Development Corporation set up by the Government of India; b) a Sector Skill Council approved by the National Skill Development Corporation c) an assessment agency or a training partner approved by the Sector Skill Council or the National Skill Development Corporation, d) a training partner approved by the National Skill Development Corporation or the Sector Skill Council in relation to i) the National Skill Development Programme implemented by the National Skill Development Corporation; or ii) a vocational skill development course under the National Skill Certification and Monetary Reward Scheme; or iii) any other Scheme implemented by the National Skill Development Corporation. Art, Culture and Sports 8 Training or coaching in recreational activities relating to arts, culture or sports 10 (a) Recipient of service Recognized sports body Provider Nature of services Player, referee, umpire, coach or team manager participation in a sporting event organized by a recognized sports body 10 (b) Provider Recognized sports body Recipient of service Another Recognised sports body Nature of services Any service 30