Services in Negative List

September 4th, 2012

1 Services not taxable

¨     Section 66D contains list of 17 services under negative list.

¨     Further definition of ‘service’ under section 65B(44) itself excludes some activities from definition of ‘service’

¨     Negative List means activity is ‘service’ but not subject to service tax

2 Two negatives make one positive

¨     In the negative list, terms like ‘excluding’, ‘other than’ and ‘except’ have been used. It means those service mentioned after ‘excluding’, ‘other than’ or ‘except’ would be taxable i.e. they are not in negative list.

¨     Remember – Two negatives make one positive.

5.3 Exclusion of main service does not mean exemption to supporting service

¨     As per section 66F(1); reference to a service (i.e. main service) shall not include reference to a service which is used for providing main service.

¨     Thus, even if ‘main service’ is either excluded or exempt from service tax, service provided to the ‘main service’ provider can come under service tax net

3 Exception to section 66F

¨     The subsidiary or auxiliary service itself may fall within definition of Negative List or Exempted Service e.g. public road construction

¨     Works contract service provided by sub-contractor to main contractor exempt if main contractor is exempt from service tax and is under works contract

4 Negative List of Services

¨     Services by Government or local authority, except support service (In case of support services, usually service receiver is liable to pay service tax)

¨     Services by RBI, foreign diplomatic missions.

¨     Agriculture and agricultural produce related services.

¨     Trading of goods is not taxable service (goods include securities).

¨     Process that results in ‘manufacture’ of goods is not ‘service’ (since then excise law provisions become applicable)

¨     Advertisement other than advertisement and sale of time slot on TV and radio (Services of advertisement agents and services of advertisement design will be subject to service tax. Advertisements on TV and radio will be subject to service tax)

¨     Toll charges (but service for collection of toll is taxable)

¨     Entertainment, amusement, gambling, betting, lottery (as this is covered in List II i.e. State List).

¨     Transmission and Distribution of Electricity by authorised bodies (however, no service tax even on private basis as tax on consumption and sale of electricity is State subject i.e. List II)

¨     Educational services (recognised), training in arts, culture, sports – no tax on midday meals and bus services to students and staff (Commercial coaching and training will be subject to service tax)

¨     Renting for residential purposes.

¨     Interest or discount on deposits, loans, advances (need not be by Bank or FI)

¨     Inter se sale or purchase of foreign currency among Banks and authorised dealers (However, commission on sale and purchase by authorised dealers and Banks to others will  be subject to service tax)

¨     Passenger transport in stage carriage, metro, inland waterways, metered taxis, auto-rickshaws is in negative list. However, transport in tourist vehicles and tour operators and transport for tourism, conducted tour charter or hire in contract carriages will be subject to service tax.

¨     Tax on rail transport of passengers on 30% value on AC and first class (expected to be levied w.e.f. 1-10-2012)

¨     Passenger transport in inland waterways

¨     Public transport in vessel between places in India except for tourism purposes

¨     Transport of goods by road is in negative list (except Goods Transport Agency (GTA) and Courier).

¨     Transport of goods air or vessel (from outside India upto customs station of clearance in India)

¨     No tax on transport in inland waterway.

¨     Funeral, burial, crematorium or mortuary  related services and also transportation of deceased (Ambulance Service).

5 Trading of goods is in Negative List of Service

¨     Trading of goods has been included in Negative List. However, ‘transfer of title in goods or immovable property, by way of sale, gift or in any other manner’ has been excluded from definition of ‘service’ itself vide section 66F(44)(a)(i).

¨     Goods include securities. Hence, trading in securities will also be in negative list.

¨     If some incidental activity is done as part of trading, service tax is not payable

¨     Trading is ‘exempted service’ for purpose of rule 6 of Cenvat Credit Rules and provisions relating to reversal of Cenvat or payment of 6% ‘amount’ will apply [It can be argued that it is not ‘service’ at all and hence it cannot be ‘exempted service’]

 

 

 

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