Service and Declared Service

September 4th, 2012

1 Meaning of ‘service’ [section 65B(44)]

¨     ‘Service’ is defined for first time w.e.f. 1-7-2012 vide section 65B(44).

¨     As per the definition, any activity carried out by a person for another for consideration is ‘service’ – It also includes ‘declared service’.

2 Activity – CBE&C Clarification dated 20-6-2012

¨     The word activity would include an act done, a work done, a deed done, an operation carried out, execution of an act, provision of a facility etc. It is a term with very wide connotation.

¨     Activity could be active or passive

3 Exclusions from definition of ‘service’

¨     Section 65B(44) also defines what is not ‘service’.

¨     Distinction between ‘Negative List’ and activities excluded in section 65B(44) is that activities listed in ‘Negative List’ is service but not taxable while activity excluded from definition of ‘service’ is not ‘service’ at all

¨     Thus, service in ‘Negative List’ will have to be considered for purpose of rule 6 of Cenvat Credit Rules but not activities which have been excluded from definition of ‘service’

4 What is not ‘service’ [Explanation to section 65B(44)]

¨     Activity of mere transfer of title in goods or immovable property is not ‘service’ [security is ‘goods’. Hence, transfer of security is not ‘service’]

¨     Deemed sale of goods under Article 366(29A) of Constitution of India is not ‘service’.

¨     Mere transaction in money is not service.

¨     Mere Actionable claim – claim of unsecured debt or beneficial interest in movable property, lottery ticket –is not service.

¨     Service provided by employee to employer – not ‘service’ [However, service provided by employer to employee can be ‘service’]

¨     Fees paid to Court or Tribunal is not service

¨     Duties performed by MP, MLA, MLC , Members of Panchayats, Members of Municipalities and Members of other local authorities is not ‘service’ [How true!]

¨     Duties performed by persons holding Constitutional post, Member or a Director in a body established by the Central Government or State Governments or local authority is not ‘service’

5 Mere transaction in money is not service

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

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

¨     Dividend, loans, advances, deposits, repos, reverse repos, share of profit are mere transaction in money [However, service tax is payable if advance is for provision of service]

6 What is not mere transaction in money

¨     Bank charges, LC charges, Bank Inspection charges, Bank guarantee charges, Loan processing fees.

¨     Commitment charges by Banks for sanctioned Bank Limit will be subject to service tax.

¨     Cheque collection charges, services of recovery agents, chit funds are not mere transaction in money. These will be taxable.

¨     Conversion of money from one currency to other is not ‘mere transaction in money’, as conversion charges are levied.

¨     Credit card charges are subject to service tax..

7 Transfer of title in goods or immovable property

¨     Simple sale or transfer of goods or immovable property not taxable.

¨     Goods include securities

¨     Sale purchase of securities (shares, derivatives) not taxable

¨     Forward contracts, future contracts not taxable.

8 Consideration

¨     ‘Consideration’ is required for taxable service.

¨     ‘Consideration’ means something in return [The term has been elaborately defined in Indian Contract]

¨     Consideration need not be in money form.

¨     For example, landowner getting some free flats in lieu of land from builder. The consideration for flats is money. Hence, service tax will be payable.

¨     Free service (if really free) is not taxable

¨     Charity is not service if there is no consideration

9 Grant or Donation is not service

¨     Grant stipulating merely proper usage of funds and furnishing of account also will not result in making it a provision of service.

¨     Donations are not consideration unless the receiver is obligated to provide something in return

10 Employee service to Employer

¨     Distinction between Contract of service and contract for services

¨     Example – Doctors in employment of hospital – there is ‘Contract of Service’. In case of visiting doctors, there is ‘Contract for services’. They are not employees of hospital.

¨     Once employer employee relation, then even payment based on profit or sales will not make difference and service will not be taxable.

¨     Visiting consultants not employee as there is contract for

¨     However, person employed on contract basis can be ‘employee’ and then service tax will not apply.

11 Declared Services

¨     Renting of immovable property, construction, software, temporary transfer of IPR, hiring, leasing, hire purchase and financial lease, service portion in execution of works contract, service portion of supply of food, agreeing to refrain from act or tolerate an act or situation, or to do an act are ‘declared services’ [section 66E]

¨     This is ‘deemed service’ to make clear the intention that these activities will be subject to service tax.

¨     Some of these are specifically included as these are partly covered under List II i.e. State List (like works contract, supply of food, hire, financial lease, hire purchase)

¨     Renting of immovable property has been specifically included as there were disputes and litigation on taxability of this service, though now its validity has been upheld by six High Courts.

¨     Service tax on software is a debatable issue since software (both packaged and tailor made) have been held as goods. Hence, it is included in ‘declared service’ to make the taxability clear.

¨     Agreeing to refrain from act or tolerate an act or situation, or to do an act is really not activity or service but has been specifically included as ‘deemed service’ (though termed as ‘declared service’)

12 Not doing any activity

¨     Agreeing to refrain from act or tolerate an act or situation, or to do an act is ‘declared service’

¨     Agreeing to refrain from act – Non-compete fees, advocate agreeing not to appear for opposite party in Court

¨     Partner or Senior Executive getting consideration for not joining competitor, will be subject to service tax

13 Agreeing to Tolerate an Act or Situation

¨     Demurrage, Booking cancellation charges, cheque return charges will be subject to service tax.

¨     Late Delivery charges, penalties, forfeiture of deposit or advance as penalty will be subject to service tax.

¨     Rework charges, deductions on account of quality issues may be subjected to service tax.

¨     Better if the service provider issues credit note instead of service receiver issuing debit note or making deduction.

¨     Accidental damages not relatable to provision of service are not subject to service tax.

14 To do an act

¨     To do an Act is ‘declared service’

¨     Actors, singers and artists would be liable, except copyright

¨     Advance or signing amounts taken by actors, artists, authors, consultants, music directors

¨     Brand Ambassadors, models subject to service tax

 

 

 

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