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Banking and Financial Services

September 28th, 2016

1 Mere transaction in money or actionable claim

¨     Mere transaction in money or actionable claim is not service – section 65B(44)

¨     Any legal tender (Indian or foreign currency) is ‘money’

¨     Transaction may be by cash, cheque, promissory note, DD, LC, money order, electronic transfer

2 What is mere transaction in money

¨     Loans, deposits, repos, reverse repos , Commercial Paper, Certificate of Deposit is mere transaction in money

¨     Forward Contracts in commodities and currencies

¨     Future contracts

3 Other non-taxable services

¨     Actionable claim i.e. claim of unsecured debts or beneficial interest in movable property, is not service

¨     Securitisation of debt or assignment of secured debt is mere transfer of title in goods or immovable property and hence that is also not service.

¨     Sale or purchase of securities, derivatives, mutual fund is not service – as securities are ‘goods’ and hence it is mere transfer of title in goods.

¨     Business Facilitators to Bank and Insurance Company in rural area are exempt from service tax.

4 What is not mere transaction in money and subject to service tax

¨     Bank charges, Letter of Credit Charges

¨     Cheque collection charges, recovery agents charge, chit funds

¨     Conversion of money is not ‘mere transaction in money’

¨     Credit card charges for late payment

¨     Entry exit load by mutual funds

5 Interest or discount is in Negative List of services

¨     Deposits, loans or advances where consideration is by interest or discount is in Negative List of services.

¨     No requirement that interest should be paid or received by Bank, NBFC, FI etc.

¨     Any business entity charging interest (for loan, late payment, deposits) will not be subject to tax.

¨     Discounting charges – no service tax.

6 Meaning of interest

¨     Interest payable in any manner in respect of any moneys borrowed or debts incurred (including a deposit, claim or other similar right or obligation)

¨     does not include service fee or other charge in respect of the moneys borrowed or debt incurred or any credit facility not utilised.

7 Value of ‘interest’ for Rule 6 of Cenvat Credit Rules

¨     Interest on delayed payment of any consideration for the provision of services or sale of goods– Nil Value

¨     Interest on deposits, loans or advances- Nil Value

¨     Hence reversal or payment of ‘amount’ under rule 6 of Cenvat Credit Rules not required

8 Relaxations in preparing invoice by Banks, NBFC, FI

¨     Invoice/challan can be issued in 45 days instead of normal 30 days

¨     Invoice/challan need not be serially numbered and name and address of service receiver may not be in invoice/challan

9 Overriding Provisions under rule 6 Cenvat

¨     In respect of banking service, the Bank or Financial Institution or NBFC engaged in providing services by way of extending deposits, loans or advances is required to pay ‘amount’ equal to 50% of Cenvat Credit availed on inputs and input services [Rule 6(3B) of Cenvat Credit Rules as inserted w.e.f. 1-4-2011 and amended w.e.f. 1-7-2012].

¨     Thus, if Bank, FI or NBFC is not engaged in providing services by way of extending deposits, loans or advances, this provision is not applicable.

10 Sale and Purchase of Foreign Exchange

¨     Inter Bank Transactions not taxable

¨     In other cases, Value is difference between  buying or selling rate and RBI reference rate

¨     Optionally – at slab rates prescribed under rule 6(7B) on total gross amount of currency exchanged – Composition Scheme

11 Place of Provision of Service

¨     Services to NRE and NRO accounts – Location of service provider i.e. Bank

¨     Services of leasing, merchant banking, forex broking, asset management, bankers to issue not covered under this head – in case of these service residuary rule 3 applies i.e. location of service receiver is place of provision of service

12 Hire purchase and financial lease of goods

¨     ‘Tax on the sale or purchase of goods’ includes – a tax on the delivery of goods on hire-purchase or any system of payment by instalments [Article 366(29A)(c) of Constitution of India]. This is deemed sale of goods.

¨     Activities in relation to delivery of goods on hire purchase or any system of payment by installments is a ‘declared service’ under proposed section 66E(f) of Finance Act, 1994.

¨     Service tax only on management fees, processing fee plus 10% of interest.

¨     Vat can be and is imposed on hire purchase and financial lease as per State Vat provisions.

¨     Taxability on service tax interest portion is doubtful since interest is actually in negative list of services.

13 Hire, operating lease of goods

¨     Section 66E(e) of Finance Act, 1994 states that following is a ‘declared service’ – transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods.

¨     If possession and control is transferred, then it is transfer of right to use and State Vat applies.

¨     If possession and control is not transferred (e.g. driver of motor vehicle or operator of the equipment is of the owner of equipment), service tax will be payable.

14 Chit Funds

¨     Service tax payable on 70% of gross amount charged

¨     No Cenvat Credit available.

 

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