SERVICE TAX - CHANGES MADE BY THE FINANCE BILL, 2010

“BUSINESS ENTITY” DEFINED 0.0. It is proposed to amend Finance Act, 1994 to define “business entity” to include an association of persons, ...

“BUSINESS ENTITY” DEFINED

0.0. It is proposed to amend Finance Act, 1994 to define “business entity” to include an association of persons, body of individuals, company or firm but to exclude an individual. This would be effective from a notified date after the enactment of the Finance bill, 2010

NEW SERVICES PROPOSED TO BE BROUGHT UNDER THE SERVICE TAX NET

1.0. The following new services are proposed to be brought under the service tax net (from a date to be notified, after the enactment of Finance Bill, 2010) :

1. The promotion, marketing or organizing of games of chance, including lottery, is being introduced as a separate service. Consequently, the Explanation in provision relating to Business Auxiliary Service is being deleted. [Section 65(105)(zzzzn)]-See Para 1.1 below
2. Service tax on the following health services:
• (a) health check up undertaken by hospitals or medical establishments for the employees of business entities [See para 1.2 below]; and
• (b) health services provided under health insurance schemes offered by insurance companies. [Section 65 (105) (zzzzo)]- [See para 1.3 below](The tax on these health services would be payable only if the payment for such health check up or preventive care or treatment etc. is made directly by the business entity or the insurance company to the hospital or medical establishment).
3. Service provided for maintenance of medical records of employees of a business entity. [Section 65 (105) (zzzzp)]- [See para 1.4 below]
4. Service of promoting of a ‘brand’ of goods, services, events, business entity etc. [Section 65 (105) (zzzzq)]. - [See para 1.5 below]
5. Service of permitting commercial use or exploitation of any event organized by a person or organization. [Section 65 (105) (zzzzr)]. - [See para 1.6 below]
6. Service provided by Electricity Exchanges. [Section 65 (105) (zzzzs)]. - [See para 1.7 below]
7. The existing taxable service ‘Intellectual Property Right (IPR)’ excludes copyright from its scope. Copyrights on (a) cinematographic films and (b) sound recording are being brought under the ambit of service tax. However, copyright on original literary, dramatic, musical and artistic work would continue to remain outside the scope of service tax. [Section 65 (105) (zzzzt)]. - [See para 1.8 below]
8. Certain additional services provided by a builder to the prospective buyers such as providing preferential location or external or internal development of complexes on extra charges. However, service of providing vehicle-parking space would not be subjected to tax. [Section 65 (105) (zzzzu)]. - [See para 1.9 below]

Games of chance service (Services of promoting, marketing or organizing of games of chance, including lottery.)

1.1. It is proposed to insert clause (zzzzn)in Section 65(105) of the Finance Act,1994(as amended from time to time)[hereinafter referred to as “the Act”] so as to define taxable service as “any service provided or to be provided to any person, by any other person, for promotion, marketing, organizing or in any other manner assisting in organising games of chance, including lottery, Bingo or Lotto, in whatever form or by whatever name called , whether or not conducted through internet or electronic networks”

The words “game of chance”, “lottery”, “Bingo”, “Lotto” have not been defined by the Act. Therefore, these words should be understood in their popular connotations as under:

Game of Chance- The following definition of ‘game of chance’ as given by www.answers.com may be noted:

• “A game of chance is a game whose outcome is strongly influenced by some randomizing device, and upon which contestants may or may not wager money or anything of monetary value. Common devices used include dice, spinning tops, playing cards, roulette wheels or numbered balls drawn from a container.Any game of chance that involves anything of monetary value is gambling. Thus, every gamble is a game of chance, but not every game of chance is a gamble.

Some games of chance may also involve a certain degree of skill. This is especially true where the player or players have decisions to make based upon previous or incomplete knowledge, such as poker and blackjack. The distinction between 'chance' and 'skill' is relevant as in some countries chance games are illegal or at least regulated, where skill games are not.”

Lotteries- Lotteries are conducted by various State Governments and are regulated by a Central legislation, i.e. the Lotteries (Regulation) Act, 1998. The said Act provides the conditions, restrictions and prohibitions pertaining to organization of lotteries conducted by the State Governments. Section 4 of the said Act enjoins upon the State Governments to print lottery tickets bearing the imprint and the logo to ensure authenticity of the lottery ticket. It also provides that ‘the State Government shall sell tickets either itself or through distributors or selling agents’.

The State Governments appoint distributors to advertise, promote and sell lottery tickets. Besides the State Governments organizing lotteries, some other games of chance are also being organized.

Bingo- The following definitions given by www.answers.com may be noted:

• “game of chance in which each player has one or more cards printed with differently numbered squares on which to place markers when the respective numbers are drawn and announced by a caller. The first player to mark a complete row of numbers is the winner.”

Lotto- The following definitions given by www.answers.com may be noted:

1. A game of chance similar to bingo.
2. A lottery, typically with an accumulating jackpot, in which participants play numbers of their choice in a random drawing.

The services provided for promotion or marketing or organizing such games of chance are now being covered by introducing a separate taxable service to cover the services in connection with games of chance, organized conducted or promoted by the client, in whatever form or by whatever name called (such as lottery, lotto) under the ‘Games of chance’ service. The tax would be applicable also to such games conducted online. Consequently, the Explanation appearing under ‘Business Auxiliary Service’ is being deleted.

Health services undertaken by hospitals or medical establishments for the employees of business organizations

1.2. It is proposed to insert clause (zzzzo) in Section 65(105) of the Act so as to define taxable service as “service provided or to be provided by any hospital, nursing home or multi-specialty clinic to an employee of any business entity, in relation to health check-up or preventive care, where the payment for such check-up or preventive care is made by such business entity directly to such hospital, nursing home or multi-specialty clinic”

Thus, the ingredients of this taxable service are:

• Service provider should be any hospital, nursing home or multi-specialty clinic.
• Service should be provided to an employee of any business entity, in relation to health check-up or preventive care; and
• The payment for such check-up or preventive care is made by such business entity directly to such hospital, nursing home or multi-specialty clinic.

The tax on the above mentioned health services would be payable only if and to the extent the payment for such medical check up is made directly by the business entity to the hospital or medical establishment. Any additional amount paid by the individual (i.e. the employee or the insured, as the case may be) to the hospital would not be subjected to service tax. This is to ensure that an individual is not required to pay a tax for which he cannot take credit.

Preventive care- Since this term is not defined in the Act, it has to be understood in its ordinary popular sense. This term is defined by www.answers.com as “Program of health care designed for the prevention and/or reduction of illnesses by providing such services as regular physical examinations. This care is in opposition to curative care, which goes into effect only after the occurrence of an illness”

Health check up is a routine facility provided by the employers to their employees. The main purpose is to ensure that the productivity of the organization is not adversely affected due to ill health of its employees. Such activities, commonly known as corporate health check up schemes, are undertaken by designated hospitals in order to detect any medical indicator or to ensure timely diagnosis of any disease so that prophylactic measures can be taken. In such cases, the hospital providing these services charge the employer i.e. the business organization and it constitutes expenditure for the latter.

Pre-flight check-ups of flying crew taxable service-In certain cases (for example, in case of flight crew) pre-flight check ups are conducted not only to test the fitness levels but also to rule out the possibility of the flying crew being under intoxication. Such health check up schemes are being brought within the ambit of service tax under the new service.

As noted above, the service provider must be any hospital or nursing home or multi-speciality clinic. As these terms are not defined in the Act, their ordinary popular meanings must be taken.

Hospital- According to answers.com, “hospital” is an “Institution for diagnosing and treating the sick or injured, housing them during treatment, examining patients, and managing childbirth. Outpatients, who can leave after treatment, come in for emergency care or are referred for services not available in a private doctor's office”. As section 65(105)(zzzzo) refers to any hospital. Thus, service provider may be any hospital, whether public or private or charitable. Also, the service provider may be general hospital-(accepting all types of medical or surgical cases) or special hospital (limiting service to a single type of patient or illness)

Nursing Home-According to Britannica Concise Encyclopedia, nursing home is a “Facility for care (usually long-term) of patients who are not sick enough to need hospital care but are not able to remain at home. Historically, most residents were elderly or ill or had chronic irreversible and disabling disorders, and medical and nursing care was minimal. Today nursing homes have a more active role in health care, helping patients prepare to live at home or with a family member when possible. They help conserve expensive hospital facilities for the acutely ill and improve the prospects of the chronically disabled. However, quality of care varies widely, and the potential for abuse exists.”

Multi-speciality clinic-It is a “medical establishment run by several specialists working in cooperation and sharing the same facilities.”

HEALTH SERVICES PROVIDED UNDER HEALTH INSURANCE SCHEMES OFFERED BY INSURANCE COMPANIES.

1.3. Large number of health insurance schemes are being offered by the insurance companies under which charges for hospitalization, surgery, post-surgical nursing etc. are generally paid by the insurance company. Such insurance policies, which fall under the category of general insurance service, are already taxable. Under general insurance service, an insurance company is a service provider to its clients.

It is proposed to insert clause (zzzzo)in Section 65(105) of the Act so as to define taxable service as “ service provided or to be provided by any hospital, nursing home or multi-specialty clinic to a person covered by health insurance scheme, for any health check-up or treatment, where the payment for such health check-up or treatment is made by the insurance company directly to such hospital, nursing home or multi-specialty clinic”

Thus, the ingredients of this taxable service are:

•  Service provider should be any hospital, nursing home or multi-specialty clinic.
• Service should be provided to a person covered by health insurance scheme, for any health check-up or treatment.
• the payment for such health check-up or treatment is made by the insurance company directly to such hospital, nursing home or multi-specialty clinic. [The tax on the above mentioned health services would be payable only if and to the extent the payment for such medical check up or treatment etc. is made directly by the insurance company to the hospital or medical establishment. Any additional amount paid by the individual (i.e. the employee or the insured, as the case may be) to the hospital would not be subjected to service tax. This is to ensure that an individual is not required to pay a tax for which he cannot take credit.]

The words “made by the insurance company directly to such hospital, nursing home or multi-speciality clinic” could be interpreted as made by insurance company directly and not through Third Party Administrators(TPAs) and if TPA makes such payment to hospital etc , there would be no service tax liability. Alternate view could be that the expression means that payment is made directly to the hospital etc and not through the insured-i.e. insured makes payment and claims reimbursement.

Under the proposed new service, tax is also being imposed on the medical charges paid by the insurance companies to the hospitals on behalf of a business entity for its employees. As such, the insurance company would be the service receiver and the tax paid by the hospital would be available to the insurance companies as credit.

Services provided for maintenance of medical records of employees of a business entity

1.4.World over, business organizations maintain medical histories of their employees which are used not only for medical purposes but also for finding the suitability of a person for a particular job or for promotion etc. Increasingly, this activity is being outsourced for a consideration. Such records are either maintained by certain designated hospitals or even by independent record keepers for a charge. This activity is now being brought under service tax. It is proposed to insert clause (zzzzp) in Section 65(105) of the Act so as to define taxable service as “service provided or to be provided to any business entity, by any other person, in relation to storing, keeping or maintaining of medical records of employees of a business entity;” If service is rendered to an individual, no service tax is chargeable as individual is not a ‘business entity’-See para 0.0 above.

Promoting a ‘brand’ of goods, services, events, business entity etc.

1.5. It is proposed to insert clause (zzzzq)in Section 65(105) of the Act so as to define taxable service as “ service provided or to be provided to any person, by any other person, through a business entity or otherwise, under a contract for promotion or marketing of a brand of goods, service, event or endorsement of name, including a trade name, logo or house mark of a business entity by appearing in advertisement and promotional event or carrying out any promotional activity for such goods, service or event.”

Thus, the ingredients of this taxable service are:

§ Service may be provided to any person, by any other person

§ Service may be provided through a business entity or otherwise-In other words, the celebrity may have floated a company or firm which contracts with businesses needing promotional services of the celebrity. In such cases, also, the same will be in taxable net.

§ Service is provided under a contract for promotion or marketing of a brand of goods, service, event or endorsement of name, including a trade name, logo or house mark of a business entity. That is service receiver should be a ‘business entity’. If business is owned by an individual and service is provided for that business, there will be no service tax attracted.

§ Service is provided by appearing in advertisement and promotional event or carrying out any promotional activity for such goods, service or event.

§ For the above purposes, “brand” includes symbol, monogram, label, signature or invented words which indicate connection with the said goods, service, event or business entity;

The definition of “brand” given above is inclusive. Its ordinary meaning is “a trademark or distinctive name identifying a product or a manufacturer”. The inclusive definition expands the meaning of this term to cover “symbol, monogram, label, signature or invented words which indicate connection with the said goods, service, event or business entity”,

Commercial advertisement has taken different shapes and forms. Apart from the advertisements in print and visual media and sponsorship, one of the recent trends is to advertise a brand (i.e. of goods, services, events, business houses bearing a particular brand name or house name) usually by using a celebrity (such as sportsperson, film stars, etc.) to associate him/her with the brand. The intended impression that is created in the minds of customers or users is that the products and services of that brand have the level of excellence comparable to that of the celebrity. Unlike in case of advertisements using models, a brand ambassador works under a contract of a reasonably long period, where under he is not only required to advertise the goods or service in different media but also to attend promotional, product launching events, make appearances in public activities related to the brand or the brand holder or use such goods or services in public. The contractual amounts are substantial and it may not only involve an individual celebrity but a group of celebrities such as a cricket team or the actors of a successful film.

Distinction between “Promoting a ‘brand’ of goods, services, events, business entity” service and “Business auxillary services” - The promotion or marketing of sale of goods produced, provided or belonging to a client and promotion or marketing of services provided by the client are already covered under Business Auxiliary Services (BAS). Such activities would continue to remain classified under BAS. The newly proposed service has a wider coverage than BAS in the sense that mere promotion of a brand would attract tax under this service even if such promotions cannot be directly linked to promotion of a particular product or service. Many companies/corporate houses (for example Sahara, ITC or Tatas) are associated with a range of activities including production/marketing/sale of goods, provision of services, holding of events, undertaking social activities etc. If the brand name / house mark etc. is promoted by a celebrity without reference to any specific product or services etc., it is difficult to classify it under BAS. Such activities, like mere establishing goodwill or adding value to a brand would fall under this newly introduced service.

Services of permitting commercial use or exploitation of any event organized by a person or an organization.

1.6. It is proposed to insert clause (zzzzr)in Section 65(105) of the Act so as to define taxable service as “ service provided or to be provided to any person, by any other person, by granting the right or by permitting commercial use or exploitation of any event including an event relating to art, entertainment, business, sports or marriage organised by such other person;”

Thus, the ingredients of this taxable service are:

• service provided or to be provided to any person, by any other person.
• service is provided by granting the right or by permitting commercial use or exploitation of any event including an event relating to art, entertainment, business, sports or marriage organised by such other person.
• Like intellectual property rights there are certain personal rights such as:
• right to privacy,
• § easement right,
•  right to secrecy.

Many individuals or organizations offer to share/part with these rights for a consideration. A corporate sponsored cricket match or company sponsored music concert; film award events; celebrities’ marriages (e.g. marriage of Aishwarya Rai and Abhishekh Bacchan); beauty contests are some of such private functions, which a large number of viewers like to see on TV or media. In such cases, companies, broadcasting agencies and video producers are given right to capture these events or programmes for their commercial exploitation in future. Often such commercial exploitation results in provision of another taxable service such as broadcasting service or programme production service.

The proposed service now seeks to tax the amount received by the person or organization, who permits the recording and broadcasting of the event from the broadcaster, or any other person, who seeks to commercially exploit the event. In many cases, the credit of the tax paid would be available to the receiver of the service.

Services provided by Electricity Exchanges

1.7. It is proposed to insert clause (zzzzs)in Section 65(105) of the Act so as to define taxable service as “ service provided or to be provided to any person, by an electricity exchange, by whatever name called, approved by the Central Electricity Regulatory Commission constituted under section 76 of the Electricity Act, 2003, in relation to trading, processing, clearing or settlement of spot contracts, term ahead contracts, seasonal contracts, derivatives or any other electricity related contract”

Thus, the ingredients of this taxable service are:

• Service provider must be an electricity exchange, by whatever name called, approved by the Central Electricity Regulatory Commission constituted under section 76 of the Electricity Act, 2003
• Service provided should be in relation to trading, processing, clearing or settlement of spot contracts, term ahead contracts, seasonal contracts, derivatives or any other electricity related contract;

Distinction between this new service and forward contracts service- Under ‘Forward Contract Service’, tax is payable by exchanges who offer assistance in sale of goods or forward contracts in commodities. However, only forward contracts covered by the Forward Contract (Regulation) Act, 1952 are covered in the scope of taxation. In the recent past, exchanges have been set up for transactions in electricity. The Central Electricity Regulatory Commission authorizes such exchanges. Since electricity exchanges are not covered by Forward Market Regulations, such transactions are not covered under the commodity exchange taxation. The proposed new service seeks to tax the charges recovered for services in relation to assisting, regulating, controlling the business of trading, processing and settlement pertaining to sale or purchase of electricity by the associations authorized by Central Electricity Regulatory Commission.

Services related to two types of copyrights hitherto not covered under existing taxable service ‘Intellectual Property Right (IPR)’, namely, that on (a) cinematographic films and (b) sound recording.

1.8. It is proposed to insert clause (zzzzt) in Section 65(105) of the Act so as to define taxable service as “service provided or to be provided to any person, by any other person, for—

(a) transferring temporarily; or

(b) permitting the use or enjoyment of, any copyright defined in the Copyright Act, 1957, except the rights covered under sub-clause (a) of clause (1) of section 13 of the said Act.

The right to temporarily transfer or permit the use of Intellectual Property Rights (IPR), namely, trademarks, designs and patents was brought under tax net in 2004. However, one of the IPRs, i.e. copyright has been specifically kept out of the purview of the tax with an intent to encourage authors and artists, as it involves creative works, such as literary work, musical work and artistic work. In Budget 2008, Information Technology (IT) Software Service was also brought under tax net, which apart from involving development, up-gradation, assistance etc. also covered the IPR aspect i.e. right to use the information technology.

As per section 13 of the Indian Copyright Act, 1957, the copyright subsists in the following classes of work:

• (a) Original literary, dramatic, musical and artistic works;
• (b) Recording of cinematographic films;
• (c) Sound recordings.

The first category of copyright has been kept out of the tax net while the second and third categories of copyrights are being made taxable under this service.

A cinematographic film means any work of visual recording on any medium (emphasis added) produced through a process from which a moving image may be produced. The same may be accompanied with sound reproduction also. Both the recording of the cinematographic film and the accompanying sound track are the property of the producer, who can temporarily transfer it or permit its use by another person for a consideration. It is this activity, which is being taxed under this service. It would have an impact on the royalty payments on both imported and indigenously produced films when the producer/right holder allows such use to another person, say the distributor.

Similarly, song, its music, lyrics and composition also enjoy the copyright protection to its owner who can commercially exploit it in the manner stated above. Normally, the copyright of music vests in the composer and the copyright of music recorded vests in the producer of the sound recording. It is possible that a lyricist or a singer may hold copyright for the words of a song or the song itself. Merely allowing that song to be recorded is a copyright, which would fall under category (a) of section 13 of the Copyright Act and thus would not be subject to service tax. However, after the performer has transferred his rights to a sound recording company, the sound recording company acquires the copyright mentioned in category (c) of section 13 supra. It is the transfer or allowing use of this right, which would be subjected to tax under the new service.

As such, depending upon the nature and conditions of the contract, companies distributing music, owners of copyright of cinematographic films etc. would be prospective taxpayers. This taxable service will not cover individual artists, composers, performers etc. as their copyrights fall under clause (a) of Sec. 13 of the Copyright Act.

Special services provided by builder etc. to the prospective buyers such as providing preferential location or external or internal development of complexes on extra charges.

1.9. It is proposed to insert clause (zzzzu)in Section 65(105) of the Act so as to define taxable service as “ service provided or to be provided to a buyer, by a builder of a residential complex, or a commercial complex, or any other person authorised by such builder, for providing preferential location or development of such complex but does not include services covered under sub-clauses (zzg), (zzq), (zzzh) and in relation to parking place.” The Explanation provides that “For the purposes of this sub-clause, ‘‘preferential location’’ means any location having extra advantage which attracts extra payment over and above the basic sale price;’.

Construction of commercial or industrial structures was brought under service tax net in 2004 while construction of residential complexes became a taxable service in 2005. The scope of the existing services includes construction, completion and finishing, repairs, alterations, renovation or restoration of complexes. It has been reported that in addition to these activities, the builders of residential or commercial complexes provide other facilities and charge separately for them and these charges do not form part of the taxable value for charging tax on construction. These facilities include,-

• (a) prime/preferential location charges for allotting a flat/commercial space according to the choice of the buyer (i.e. Direction- sea facing, park facing, corner flat; Floor- first floor, top floor, Vastu- having the bed room in a particular direction; Number- lucky numbers);
• (b) internal or external development charges which are collected for developing/maintaining parks, laying of sewerage and water pipelines, providing access roads and common lighting etc;
• (c) fire-fighting installation charges; and
• (d) power back up charges etc.

Since these charges are in the nature of service provided by the builder to the buyer of the property over and above the construction service, such charges are being brought under the new service. Charges for providing parking space have been specifically excluded from the scope of this service. Development charges, to the extent they are paid to State Government or local bodies, will be would be excluded from the taxable value levy. Further, any service provided by Resident Welfare Associations or Cooperative Group Housing Societies consisting of residents/owners as their members would not be taxable under this service.

ALTERATION OR EXPANSION IN THE SCOPE OF EXISTING SERVICES

2.0. In the case of following existing taxable services, the scope has been altered either to expand their scope or to remove certain difficulties that have been faced during tax implementation. These changes are as follows,-

• The scope of the taxable service ‘Air Passenger Transport Service’ [section 65 (105) (zzzo)] is being expanded to include domestic journeys, and international journeys in any class.[See Para 2.1 below]
• Presently the taxable service, ‘Information Technology Software Service’ [section 65 (105) (zzzze)] is subjected to tax only in cases where such IT software is used for furtherance of business or commerce. The scope of the taxable service is being expanded to tax such service even if the service provided is used for purposes other than business or commerce.[See para 2.2 below]
• An Explanation is being added in the definition of the taxable service ‘Commercial Training or Coaching Service’ [section 65 (105) (zzc)] to clarify that the term ‘commercial’ appearing in the relevant definitions, only means that such training or coaching is being provided for a consideration, whether or not such training or coaching is conducted with a profit motive. This change is being given retrospective effect from 01.07.2003. [See para 2.3 below]
• In the definition of the taxable service ‘Sponsorship Service’ [section 65 (105) (zzzn)], the exclusion relating to sponsorship pertaining to sports is being removed. [See Para 2.4 Below]
• In the definition of the taxable services ‘Construction of Complex service’ [section 65 (105) (zzzh)], and ‘Commercial or industrial construction service’ [section 65 (105) (zzq)], it is being provided that unless the entire consideration for the property is paid after the completion of construction (i.e. after issuance of completion certificate by the competent authority), the activity of construction would be deemed to be a taxable service provided by the builder/promoter/developer to the prospective buyer and the service tax would be charged accordingly. .[See Para 2.5 Below]
• Amendments are being made in the definition of the taxable service ‘Renting of immovable property’ [section 65 (105) (zzzz)] to,-(i) provide explicitly that the activity of ‘renting’ itself is a taxable service. This change is being given retrospective effect from 01.06.2007; and(ii) provide that renting of vacant land, where the agreement or contract between the lessor and lessee provides for undertaking construction of buildings or structures on such land for furtherance of business or commerce during the tenure of the lease, shall be subjected to service tax. [See Para 2.6 Below]
• The definitions of the taxable services, namely the ‘Airport Services’ [section 65 (105) (zzm)], the ‘Port Services’ [section 65 (105) (zn)] and the ‘Other Port Services’ [section 65 (105) (zzl)] are being amended to provide that,-(a) all services provided entirely within the airport/port premises would fall under these services; and(b) an authorization from the airport/port authority would not be a precondition for taxing these services. [See Para 2.7 Below]
• An explanation is being added in the definition of the taxable service ‘Auctioneer’s Service’ [section 65 (105) (zzzr)] to clarify that the phrase ‘auction by government’ means an auction involving sale of government property by any auctioneer and not when the government acts as an auctioneer for sale of the private property. [See Para 2.8 Below]
• The definition of the taxable service ‘Management of Investment under ULIP Service’ [section 65 (105) (zzzzt)] is being amended to provide that the value of the taxable service for any year of the operation of policy shall be the actual amount charged by the insurer for management of funds under ULIP or the maximum amount of fund management charges fixed by the Insurance Regulatory & Development Authority (IRDA), whichever is higher. [See Para 2.9 Below]

Transport of passengers by air service:

2.1. In 2006, service tax was imposed on international air travel by a passenger embarking in India and traveling in higher [other than economy] classes. This tax continues.

The taxable service is being suitably amended to extend this levy to cover all domestic and international air passengers embarking in India. The, modalities of working out the tax amount including exemptions, abatement etc. would be prescribed at the appropriate time. Section 65(105)(zzzo) of the Act is proposed to be substituted so as to provide that taxable service means “service provided or to be provided to any passenger, by an aircraft operator, in relation to scheduled or non-scheduled air transport of such passenger embarking in India for domestic journey or international journey”.

In order to remove these difficulties, the definitions of the relevant taxable services are being amended to clarify that all services provided entirely within the port/airport premises would fall under these services. Further, specific authorisation from the port/airport authority would now not be a pre-condition for the levy.

Expansion of the scope of IT Software Service

2.2.In Budget 2008, services provided in relation to Information Technology (IT) Software, such as development, designing, programming, up-gradation of IT software, providing advice, consultancy and assistance on the matters of IT software and providing right to use IT software, whether supplied on a media or electronically, were brought in the ambit of service tax. However, the tax was limited to cases where such IT software was to be used in the course or furtherance of business or commerce. In other words, these activities are taxable only when the receiver of service exploits them for commercial or business purposes.

The definition of this taxable service is being suitably amended to extend this levy to cover the aforesaid IT software services provided in all cases i.e. whether or not used in the course or furtherance of business or commerce.

Redefining the scope of commercial training and coaching service

2.3.Commercial training and coaching service was introduced in Budget 2003 with a view to tax the mushrooming coaching institutes and training centres which either provide coaching classes for examinations or unrecognized courses in various areas such as, management, marketing, engineering etc. The schools, institutes, colleges and universities providing courses that lead to award of recognized diplomas/degrees and sports education were kept out of tax net. These include universities created under a Central or State Act, institutes recognized by UGC as universities or deemed universities, institutes granted recognition professional councils like AICTE, Medical Council of India, Bar Council of India etc. To distinguish the former types of institutes/centres from the latter, the word ‘commercial’ was used in the definitions of ‘Commercial training and coaching’, ‘Commercial training and coaching centres’ and ‘taxable service’.

The use of the word ‘commercial’ in these definitions has led to certain unintended consequences. A view has been taken that the term ’commercial’ appearing in various definitions implies that the institute must be run with a profit motive to fall under the taxable service. A number of taxpayers resisted paying tax on this ground. In order to clarify the legislative intent, the definition of the taxable service is being suitable amended, through insertion of an Explanation, to clarify that the word ‘commercial’ means any training or coaching that is provided for a consideration irrespective of the presence or absence any profit motive. This amendment is being carried out retrospectively (from July 2003) so as resolve the disputes pending at different levels of the dispute settlement system.

Expanding the scope of Sponsorship Service

2.4. Sponsorship service was brought under tax net in Budget 2006. However, sponsorship of sports events was kept out of the purview of the taxation. The exclusion available for sponsorship pertaining to sports is being removed by suitable amendment. Suitable exemption to certain categories of sports events would be considered at the appropriate time.

Service tax on construction services

2.5. The service tax on construction of commercial or industrial construction services was introduced in 2004 and that on construction of complex was introduced in 2005.

As regards payment made by the prospective buyers/flat owners, in few cases the entire consideration is paid after the residential complex has been fully developed. This is in the nature of outright sale of the immovable property and admittedly no service tax is chargeable on such transfer. However, in most cases, the prospective buyer books a flat before its construction commencement/completion, pays the consideration in instalments and takes possession of the property when the entire consideration is paid and the construction is over.

In some cases the initial transaction between the buyer and the builder is done through an instrument called ‘Agreement to Sell’. At that stage neither the full consideration is paid nor is there any transfer in ownership of the property although an agreement to ultimately sell the property under settled terms is signed. In other words, the builder continues to remain the legal owner of the property. At the conclusion of the contract and completion of the payments relating thereto, another instrument called ‘Sale Deed’ is executed on payment of appropriate stamp duty. This instrument represents the legal transfer of property from the promoter to the buyer.

In other places a different pattern is followed. At the initial stage, instruments are created between the promoter and all the prospective buyers (which may include a person who has provided the vacant land for the construction), known as ‘Sale of Undivided Portion of The Land’. This instrument transfers the property right to the buyers though it does not demarcate a part of land, which can be associated with a particular buyer. Since the vacant land has lower value, this system of legal instrumentation has been devised to pay lesser stamp duty. In many cases, an instrument called ‘Construction Agreement’ is parallely executed under which the obligations of the promoter to get property constructed and that of the buyer to pay the required consideration are incorporated.

These different patterns of execution, terms of payment and legal formalities have given rise to confusion, disputes and discrimination in terms of service tax payment.

In order to achieve the legislative intent and bring in parity in tax treatment, an Explanation is being inserted to provide that unless the entire payment for the property is paid by the prospective buyer or on his behalf after the completion of construction (including its certification by the local authorities), the activity of construction would be deemed to be a taxable service provided by the builder/promoter/developer to the prospective buyer and the service tax would be charged accordingly. This would only expand the scope of the existing service, which otherwise remain unchanged.

Renting of immovable property service

2.6. This service was introduced in 2007 with a view to tax the commercial use of immovable property hired on rent. The tax on rent paid is available as input credit if the commercial activity involves provision of taxable service or manufacture of dutiable goods. However, the Hon’ble High court of Delhi in its order dated 18.04.2009 in the case of Home Solutions Retail India Ltd. & Others vs. UOI [2009]20 STT 129 has struck down this levy by observing that the renting of immovable property for use in the course of furtherance of business or commerce does not involve any value addition and therefore, cannot be regarded as service. Apart from the revenue loss caused to the exchequer, the judgement has placed the landlords in a very precarious situation. In view of this judgement, the commercial tenants have stopped them reimbursing the tax element. However, the landlords are receiving regular demand notices from the department issued to protect government’s revenue for the interim period.

In order to clarify the legislative intent and also bring in certainty in tax liability the relevant definition of taxable service is being amended to clarify that the activity of renting of immovable property per se would also constitute a taxable service under the relevant clause. This amendment is being given retrospective effect from 01.06.2007.

Renting of vacant land- Under the definition of taxable service pertaining to renting of immovable property, the renting of vacant land used for agriculture, farming, forestry, animal husbandry, mining, education, sports, circus, entertainment and parking purposes, is excluded from the purview of service tax. Further, ‘vacant land’, whether or not having facilities clearly incidental to the use of such vacant land has also been excluded from the tax net.

It has been reported that in many states, the local industrial corporations or PSUs or even private organizations rent vacant land on a long term leases with an explicit understanding that lessee would construct factory or commercial building on that land. In such cases the ownership of the land is not transferred to the lessee and thus it is a service provided by the lessor to the lessee. The situation is similar to renting out a constructed structure for commercial purposes except that at the time of executing the lease agreement the land is in a vacant state and that later the lessee constructs commercial structure thereon after executing the lease deed. Such lease agreements escape service tax because of the exclusion mentioned above.

Suitable amendment in the definition of taxable service relating to renting to immovable property is being made so as to provide that tax would be charged on rent of a vacant land if there is an agreement or contract between the lessor and lessee that a construction on such land is to be undertaken for furtherance of business or commerce during the tenure of the lease.

Services provided in an airport or port

2.7. Two services, namely ‘port services’ and the ‘airport services’ were introduced in Budgets 2001 and 2004 respectively. The services provided by minor ports covered under ‘other ports’ became taxable from 2003. The purpose behind creating these services was that since a number of activities are undertaken within the premises of ports and airports, it would be easier to consolidate all such services under one head.

It was reported that divergent practices are being followed regarding classification of services being performed within port/airport area. In some places, all services performed in these areas [even those falling within the definition of other taxable services] are being classified under the port/airport services. Elsewhere, individual services are classified according to their individual description on the grounds that the provisions section 65 A of Finance Act, 1994 prescribes adoption of a specific description over a general one.

Further, both the definitions use the phrase ‘any person authorised by port/airport’. In many ports/airports there is no procedure of specifically authorizing a service provider to undertake a particular activity. While there may be restriction on entry into such areas and the authorities often issue entry-passes or identity cards, airport/port authorities seldom issue authority/permission letters to a service provider authorising him to undertake a particular task. Many taxpayers have claimed waiver of tax under these services on the ground that the port/airport authority has not specifically authorised them to provide a particular service.

Auctioneer’s service

2.8. Auctioneer’s service was introduced in 2006 and is applicable to any service provided in relation to auction of property whether moveable or immoveable, tangible or intangible. However, the service, by definition excludes ‘auction by government’. This phrase has given rise to confusion. In certain cases, the property belonging to or vested in the Central or the State governments (such as goods confiscated by Customs department) are sold in an auction that is conducted by private organizations. Conversely, in certain cases government bodies, such as ‘Tobacco Board’ conducts auction of properties that belong to private individuals or organizations.

In order to avoid the confusion, it is being clarified through an Explanation that the phrase ‘auction by government’ appearing in the taxable service, namely ‘Auctioneer’s service’ means an auction where government property is being auctioned and not when the government acts as an auctioneer for the private goods.

Unit Linked Insurance Plans

2.9. Tax on insurers issuing Unit Linked Insurance Plans (ULIP) was imposed w.e.f. 1-06-2008. The taxable service is the “Management of investment, under unit linked insurance business, commonly known as Unit linked Insurance Plans (ULIP) scheme” by an insurer carrying life insurance business.

ULIPs are broadly similar to the mutual funds, except that they are required to segregate a certain part of the premium towards the life insurance of the plan holder. Further, unlike in the mutual fund industry, where the funds are managed by an independent Asset Management Company (which is a separate legal entity), in case of ULIP the funds are managed by the insurance company itself. Thus, it is difficult to ascertain the component of the total charges that is attributable to the management of investment.

Accordingly, for the purpose of valuation for charging of service tax, an Explanation was prescribed which in brief, explained that the taxable value for the purpose of this service is the difference between the (a) premium paid by the policy holder for the Unit Linked Insurance Plan policy; and (b) the sum of premium paid for or attributable to risk cover, whether for life, health or other specified purposes, and the amount segregated for actual investment. In other words the differential amount was considered as the charges for asset management.

It is however a fact that the amount appropriated by the insurance company is not only asset management but for various activities, such as,-

a) Premium Allocation Charge: is an upfront deduction from the policy premium, which is generally more than 10% in the first year of ULIP, and continues to be very high for the initial three years. This amount is used for following purposes:

i) Initial expenses in marketing the issue, including commission paid to distributors.

ii) Cost of conducting medical check up of the ULIP holder and other miscellaneous charges.

b) Policy administration charges; monthly charges for managing the paperwork and other formalities for the insurance, and are not related to asset management. It is chargeable to service tax under insurance services.

c) A number of other charges are also charged by the insurance companies, which, inter alia, include, policy surrender charges, switching charges, partial withdrawal charges, miscellaneous charges etc.

d) Fund management charges: This is the amount charged by the insurance company for managing the investible funds, which is intended to be taxed under this service. This amount has been capped for ULIPs by Insurance Regulatory and Development Authority (IRDA) at 1.5% of the gross yield for schemes below 10 years, and 1.25% for schemes above 10 years. Since the charge pertaining to asset management alone should form the value for taxable purpose, the explanation provided under the definition of the taxable service is being suitably amended to provide that that the value of the taxable service for any year of the operation of policy shall be the actual amount charged by the insurer for management of funds under ULIP or the maximum amount of fund management charges fixed by IRDA, whichever is higher.

The method of computation for monthly payment of tax by such service providers, would be prescribed at the appropriate time.

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EXEMPTIONS

3.0. The following exemptions from service tax are being provided with effect from

27th February, 2010, namely,-

•  Statutory taxes charged by any government (including foreign governments, where a passenger disembarks) on air passenger would be excluded from taxable value for the purpose of levy of service tax under the Air Passenger Transport Service. (Notification No.15/2010-ST, dated 27th February, 2010).
• Exemption from service tax is being provided to services relating to ‘Erection, Commissioning or Installation’ of,
• -Mechanized Food Grain Handling Systems etc.;
• Equipment for setting up or substantial expansion of cold storage; and 
• Machinery/equipment for initial setting up or substantial expansion of units for processing of agricultural, apiary, horticultural, dairy, poultry, aquatic, marine or meat products. (Notification No.12/2010-ST, dated 27th February, 2010).
•  Packaged I.T. software, pre-packed in retail packages for single use, is being exempted from service tax leviable under IT Software Service, subject to specified conditions. These conditions include that either the customs duty (in case of import) or excise duty (in case of domestic production) has been paid on the entire amount received from the buyer (Notification No.17/2010-ST and No.2/2010-ST, both dated 27th February, 2010).
• At present, exemption from service tax is available to transport of fruits, vegetables, eggs or milk by road by a goods transport agency. The scope of exemption is being expanded by including food grains and pulses in the list of exempted goods (Notification No.4/2010-ST, dated 27th February, 2010).
• Exemption from service tax is being provided to Indian news agencies under ‘Online Information and Database Retrieval Service’ and ‘Business Auxiliary Service’ subject to specified conditions (Notification No.13/2010-ST, dated 27th February, 2010).
• Exemption from service tax is being provided to the ‘Technical Testing and Analysis Service’ and ‘Technical Inspection and certification service’ provided by Central and State seed testing laboratories, and Central and State seed certification agencies (Notification No.10/2010-ST, dated 27th February, 2010 ).
• Exemption from service tax is being provided to the transmission of electricity (Notification No.11/2010-ST, dated 27th February, 2010).

WITHDRAWALS OR AMENDMENTS TO EXISTING EXEMPTIONS

4.0. The following changes have been brought about in the existing exemptions,-

•  Exemption from service tax on service provided in relation to ‘Transport of Goods by Rail’ by notification No.33/2009, dated 1st September, 2009 is being withdrawn (Notification No.7/2010-ST, dated 27th February, 2010 ). The exemption provided to certain specified goods transported by rail vide Notification No. 28/2009-ST, dated 31st August, 2009, which was subsequently withdrawn vide notification No. 36/2009-ST dated 9th September, 2009, has been restored. (Notification No. 8/2010-ST, dated 27th February, 2010). An abatement of 70% of the gross value of the freight charged on goods (other than exempted goods) is being provided vide notification No. 9/2010-ST dated 27th February, 2010 by adding the service of ‘Transport of goods by rail’ in notification No. 1/2006-ST dated 01.03.2006. All these changes will also come into effect from 01.04.2010.
• The exemption from service tax on ‘Commercial training or coaching service’ extended to vocational training institutes vide notification No. 24/2004-ST dated 10.09.2004 is being limited by introducing a new definition of vocational training institutes. Service tax exemption will be available only to industrial training institutes or industrial training centres affiliated to National Council of Vocational Training (NCVT) and offering courses in the designated trades covered under Schedule I of the Apprentices Act, 1961. The List figuring under Schedule I of the Act covers engineering as well as non-engineering skills/trades (Notification No.3/2010-ST, dated 27th February, 2010 ).
• Exemption from service tax, presently available to Group Personal Accident Scheme provided by Govt. of Rajasthan to its employees, under General Insurance Service is being withdrawn (Notification No.5/2010-ST, dated 27th February, 2010 ).
• Notification No.1/2002-ST dated 01.03.2002 is being superceded by Notification No.14/2010-ST, dated 27th February 2010 to provide that the construction and operation of installations, structures and vessels for the purposes of prospecting or extraction or production of mineral oils and natural gas in the Exclusive Economic Zone and the Continental Shelf of India and supply of any goods connected with these activities would be within the purview of the provisions of Chapter V of the Finance Act, 1994. Similar changes have been made in the definition of the term ‘India’ appearing in the Export of Services Rules, 2005 and Taxation of Services (Provided from Outside India & Received in India) Rules, 2006. (Notification No.6/2010-ST and Notification No.16/2010-ST, both dated 27th February, 2010).

AMENDMENT TO EXPORT OF SERVICE RULES, 2005

5.0. Export of Service Rules, 2005 have been amended as follows:

• The taxable service, namely ‘Mandap Keeper Service’ has been shifted from the list under rule 3(1) (ii) [i.e. performance related services] to the list under rule 3(1)(i) [immovable property related services] and three taxable services, namely ‘Chartered Accountant Services’, ‘Cost Accountant Services’ and ‘Company Secretary’s Services’, have been shifted from the list under rule 3(1) (ii) [i.e. performance related services] to the list under rule 3(1)(iii) [residual category of services]. Notification No.6/2010-ST, dated 27th February 2010 refers. Identical changes have been made under the Taxation of services (Provided from Outside India and Received in India) Rules, 2006 as well (Notification No.16/2010-ST, dated 27th February 2010);
• The condition prescribed under rule (2) (a) i.e. ‘such service is provided from India and used outside India’ has been deleted (Notification No.6/2010-ST, dated 27th February 2010).

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AMENDMENT TO NOTIFICATION NO. 5/2006-CE(NT) ISSUED UNDER RULE 5 OF THE CENVAT CREDIT RULES, 2004

6.0. A number of representations were received by the Department from exporters, especially the exporters of services regarding difficulties being faced in availing the benefit of refund of accumulated credit under the scheme prescribed under Notification No. 5/2006-CE (NT) dated 14.03.2006, issued under rule 5 of the CENVAT Credit Rules, 2004. As an immediate measure, CBEC issued a clarificatory circular No. 120/01/2010-ST, dated 19.01.2010. It was however felt that a permanent solution would require supplementing the clarification with certain amendments to the notification, part of which had to be ‘retrospective’ in nature. Accordingly, Notification No. 5/2006(CE) (NT) has been amended vide Notification No. 7/2010-CE (NT), dated 27th February 2010. This mainly deals with the procedure that needs to be adopted in case of the new refund claims. However, to resolve the disputes arising on account of the wordings/ illustration provided in the notification, the same is being amended retrospectively (w.e.f. 14.03.2006) (Clause 73 of the Finance Bill, 2010 refers) so as to resolve the disputes in respect of pending cases as well. Therefore to visualize the entire revamped and simplified refund scheme, both the amending notification and the Finance Bill provision must be read in conjunction.

Retrospective changes effected from 14.03.2006 (i.e. from the date of issue of notification)

1) The words “in relation to” have been added in main condition (a) of the Notification.

2) The word “in’ contained in main condition (b) of the said Notification has been replaced with “for”.

The above two changes ensure that the provisions of the refund notification and the CENVAT Credit Rules are aligned and that refund is granted on all goods or services on which CENVAT can be claimed by the exporter of goods or services.

3) The illustration given in condition 5 of the Appendix to the Notification has been deleted. This ensures that refund of CENVAT credit which has been availed in the period prior to the quarter/ period for which the refund has been claimed is also eligible for refund. The refund claims should be calculated only on the basis of the ratio of the export turnover to the total turnover of the claimant. Thus, if the CENVAT credit available to the exporter at the end of the quarter, or month, as the case may be, is Rs. 1 crore, and the ratio of export to total turnover during the quarter is 50%, then Rs. 50 lakh should be refunded to the exporter. The essence of the changes is that refund shall be available for all goods, or input services, on which CENVAT is permissible and should be processed accordingly. Further, refund of CENVAT should not be linked to CENVAT taken in a particular period only.

Prospective changes

1. The conditions A and B given in the Annexure to the Notification are being deleted, and the details required to be given under these conditions, along with certain additional details, are to be furnished by the claimant in a table, which has been prescribed in condition A. The table should be certified by a person authorized by the Board of Directors (in the case of a limited company) or the proprietor/partner (in case of firms/partnerships) if the amount of refund claimed is less than Rs.5 lakh in a quarter. In case the refund claim is in excess of Rs.5 lakh, the declaration should also be certified by the Chartered Accountant who audits the annual accounts of the exporter for the purposes of Companies Act, 1956 (1 of 1956) or the Income Tax Act, 1961 (43 of 1961), as the case may be.

This verification is aimed at reducing the checking of voluminous records which is required to be done by the officers processing the refund claims and ensure faster processing of refund claims.

2.Consequential changes by introducing the words “in relation to” and “for” in the Annexure to the Notification have been brought to bring them in line with the amendments made in the main conditions of the Notification.

by Mr. Srinivasan Anand G, CA
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