Renting of goods and immovable property service

September 6th, 2012

20.1 Hire is Deemed Sale of Goods

¨     ‘Tax on the sale or purchase of goods’ includes – a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration [Article 366(29A)(b) of Constitution of India – introduced in 1982]

20.2 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. Till 30-6-2012, this was termed as ‘Supply of Tangible Goods for Used Service’

¨     Renting of motor vehicle to state transport or GTA is exempt from service tax.

20.3 Reverse charge in renting of Motor vehicle designed to carry passengers

¨     Reverse charge when renting to a person who is not in similar line of business.

¨     In case of renting or hire of motor vehicle, reverse charge applies only if vehicle is provided with driver.

¨     Reverse charge if Service Provide HUF, Individual, firm AND Service receiver is Business entity registered as body corporate

¨     If motor vehicle is provided on hire (operating lease) without a driver, it is ‘transfer of right to use goods’. It is deemed sale of goods and then only State Vat provisions apply and not service tax.

¨     If the motor vehicle is given on hire without driver, the person providing such vehicle can claim exemption from State Vat if his turnover is below limits specified under State Vat Act [The limit is ` five lakhs in many States].

¨     Service tax is payable on 40% of value if service provider does not avail Cenvat credit (A certificate should be obtained from him when service tax is payable on reverse charge basis, though legally not required).

¨     Note that Cenvat credit on renting of motor vehicle to carry passengers is not available in most of the cases. Hence, it is cost to the company.

20.4 Renting of Immovable Property

¨     Tax imposed w.e.f. 1-6-2007. There was stay given by Delhi High Court. Subsequently Finance Act, 1994 was amended retrospective effect in 2010.

¨     Later, Six High Courts have upheld the validity of levy – SC Partial stay only for prior period, only for parties before the Supreme Court.

¨     No penalty if service tax with interest paid before 27-11-2012. Hence, advisable to pay service tax with interest.

 

20.5 Renting of immovable property – taxability

¨     Renting includes leasing, licensing etc.

¨     Exclusive possession or control is not required to be transferred

¨     Renting of hotels, guest houses, inns taxable if ‘Declared Tariff’ exceeds ` 1,000 per day. Otherwise, service tax payable on 60% of amount charged w.e.f. 1-7-2012 with Cenvat on input services only (earlier it was 50% without Cenvat credit).

20.6 Renting of Immovable Property – Exemptions

¨     Renting of land for agriculture

¨     Renting of immovable property to recognised Educational Institutions

¨     Renting for residential purposes

¨     Renting by Government to non-business entity.

¨     Renting by RBI

¨     Public parking is not taxable but renting of vacant land for parking is subject to serviced tax.

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