bimal jain - icsi
TRANSCRIPT
Service Tax Procedures & Compliances
Bimal JainFCA, ACS, LLB, B.Com (Hons)
Member of Indirect Tax Committee of PHD & FICCIMember of GST Committee of NIRC-ICAI/ICSI
Member of Indirect tax faculties of ICAI/ICSI/ICWAI
Topic of the DayTopic of the DayPractical Aspects of Handling Service Tax Procedures & Compliances in the light of recent changes in the Scope of Taxable Services/ Point of Taxation Rules, 2011/ Consequential Amendments/ Definition of Inputs/ Input Services/ Exempted Services/ e-filing of Service Tax Return/ e-payment of Service Tax, Avenues for CS Professionals, etc.
Avenues for CS Professionals Secretarial/ Legal, Finance, Accounts, Taxation Direct/ Indirect – Excise, Service Tax, Customs, VAT, GST DTA – Manufacturer/ Trader/EOU/SEZ, etc.Why is change needed? Can we take advantage of the present ? A positive attitude causes a chain reaction of positive thoughts, events, and outcomes. Let’s change to make a change!!!10/3/2011 2
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Proactive Vs. ReactiveProactive Vs. ReactiveProactive Action and result oriented behavior, instead of the one that waits for things to happen and then tries to adjust (react) to them. Proactive behavior aims at identification and exploitation of opportunities and in taking preemptory action against potential problems and threats.
Reactive behavior focuses on fighting a fire or solving a problem after it occurs Adjudication, litigation Intentional Vs. Unintentional/ Mens rea Vs. Good FaithUOI vs. Rajasthan spinning & weaving mills 2009 (238) E.L.T. 3 (S.C.) & UOI vs. Dharamendra Textile Processors, 2008 (231) E.L.T. 3 (S.C.)
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Proactive Vs. ReactiveProactive Vs. ReactivePenalty U/S 11AC – Mandatory/ Civil liability ‐ DharmendraRajasthan ‐ How payment of differential duty before/ after issuance SCN can alter the liability of Penalty.Authorities having no discretion on quantum and penalty equal toduty must be imposed once S. 11AC of CEA, 1944 ibid is applicable.
Section 9C of CEA, made applicable to Finance Act, 1994, provides that in any prosecution for an offence, existence of culpable mental state shall be presumed by the Court. Therefore each offence described in S. 89(1) of the Finance Act, 1994, has inherent mens rea i.e. Delinquency by the defaulter of service tax itself establishes his ‘guilt’ i.e. Non existence of ‘mens rea’ is on the accused” ‐ Circular No. 140/9/2011‐S.T., dated 12‐5‐2011
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Prosecution Prosecution ––S.89S.89Initiated - Tax demand>10L
No Repetition < 10L Circular No. 140/9/2011-ST
Dated 12/05/2011
Initiated Initiated -- Tax demand>10LTax demand>10LNo Repetition < 10L No Repetition < 10L
Circular No. 140/9/2011Circular No. 140/9/2011--ST ST Dated 12/05/2011Dated 12/05/2011
No ArrestChief Commissioner Approval
Non depositTax
>6 months
False books or
information
Cenvatcredit
without actualservice
Provisionwithout invoice
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Regulatory philosophyRegulatory philosophy
RISKLOW HIGH
• Occasional omissions; no fraud etc.
• On payment of interest only if paid before SCN
• Penalties halved u/s 76
• Fraud etc but information recorded in A/cs.
• 1% PM up to max. of 25% if paid before SCN
• Penalty 50%; reduced to 25% if paid within 1 month
• Deliberate non compliance; criminal intent
• No mitigating of penalties, make example
• Even prosecution
Omissions; Timely correction
Recorded violations ; Timely compliance
Unrecorded violations
CLIENT CATEGORIES – BEHAVIOURS, MOTIVATION & PENALTY
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How to be Proactive How to be Proactive
Self Reflect, look at yourself and ask some questionsExamine critically how you might perform the tasks more efficientlyDevelop a mindset that looks to solve problems instead of dwelling on them. Get and stay ahead of less‐urgent, day‐to‐day tasks.Eliminate altogether any task that is truly unnecessary. Know which tasks are priorities and which can wait.Evaluate your procedures and processes as you use them.Try to anticipate things you will need to know.Look for ways to automate routine tasks.
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Supply Supply ––Chain Chain –– GSTGST
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Manufacturing
Trading – Intra State/ Inter State/ Exports
Goods
Rendering of Services
Receiver – Intra state/ Inter State/ Exports
Services
InputsCG
Services
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Present Power of levy Present Power of levy
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Goods
Central Govt
• Import – BCD,CVD, SAD • Manufacturing – CE/ AED• Surcharges and Cesses
State Govt• VAT• Entry Tax/Octroi• CST
Services
Central Govt
• Service tax
State Govt
• No Power except luxuries tax, entertainment Tax, etc.
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Taxable EventTaxable EventExcise Manufacturing – Accrual – S. 2(f)Customs Duty Export/ Import of Goods – S. 2(28)/ 2(23)VAT/ CST Sale/ Deemed Sale – Accrual – S. 2(g)Service Tax Rendering of Services/ Provision of Services ‐
S. 66 of Finance Act There shall be levied a tax on the Value of taxable services referred to in various sub‐clauses of (105) of S.65 and collected in such manner as may be prescribed
S. 65(105) Any Service provided or to be provided (16‐6‐2005)
Association of Leasing & Financial Service Companies vs. UOI 2010 (20) STR 417 SC Taxable Event Rendering of Service
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Goods Vs. ServicesGoods Vs. ServicesService (60% of GDP/ +10%) Not Defined– 1/7/1994 –3 Services–5%; Taxes on Service – Not on Goods – Mutually exclusive of VAT‐“Imagic Creative Pvt. Ltd. CCT (2008) 2 SCC 614” & Destination based ‐ Value Added ‐ Consumption Tax – “ALL India Federation of Tax Practitioners (2007) 7 SCC 527”.Idea Mobile Communication Ltd. –SC – SIM Card‐ KeralaPublic Debate on Negative List of Services ‐“Service" means anything which does not constitute supply of goods, money or immovable property and includes….GST‐ Chargeability – Taxable Event/ Classification – Overlapping
‐ Seamless Flow of Credit – Business/ Personal ‐ Works Contract – Goods/ Services – Double Taxations –Aspect
Theory10/3/2011 11
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Cenvat Rules, 2004 Cenvat Rules, 2004
Change in the definition of Inputs/ Input Services/ Exempted Services Change in Rule 6 – Taxable/ Exempted SuppliesUnsettling the settled jurisprudence ‐ “Coca Cola India (2009) 22 STT 130 & ABB Ltd (2009) 21 STT 77
(CESTAT)”
Was it really needed before GST?
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InputsCapital GoodsInput Services
Manufacturing of GoodsServices
Used in the factory of Manufacturer or providing Output Services.
CG – Rule 2(a) Goods U/Chapter 82,84, 85, 90, etc.,
Inputs – Rule 2(k) Substituted to include:
‐ All goods used in the factory of the manufacturer;
‐ All goods used for providing any output service; and
‐ Accessories and goods cleared along with the final product, provided value of such goods is included in the value of the final product;
‐ Goods used for providing free warranty for final products, where value of such warranty is included in the price of the final product;
‐ All goods used for generation of electricity or steam for captive use
Capital Goods & InputsCapital Goods & Inputs
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Specifically Excluded from Inputs:
‐ Light diesel oil, high speed diesel oil and motor spirit (petrol);
‐ Inputs used for civil construction of a civil structure or used for laying foundation or making of structure for support of CG except for provisions of Port Services, Airport/ civil enclave/ Commercial or industrial Constructions, Construction of complex,Works Contract Services;
‐ Motor vehicles;
‐ Capital goods except when used as parts or components in the manufacture of final product;
‐ Food items, goods used in guest houses, residential colonies, clubs and clinical establishment, used primarily for personal use or consumption by employees
InputsInputs
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Input services – Rule 2(l) Amended to Exclude services such as Architect, Port Services, Airport/ civil enclave/ Commercial or industrial Constructions, Construction of complex, Works Contract Services; in so far as used for construction of building, layingstructure or support structure for capital goods (eligible if used for any of these services)
Further, expression ‘activities relating to business’ ‐ deleted from the inclusive part of the definition and ‘business exhibition’ & ‘legal services’ added in the list of services provided in the inclusive list
Services relating to motor vehicles, not qualify as an input service, except in respect of output services where credit of motor vehicle is permitted as ‘capital goods’
Input ServicesInput Services
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Services used primarily for Personal use or consumption of employees not qualify as an input service ‐ Services such as outdoor catering, beauty treatment, health services, membership of clubs etc., not constitute an input service
Exempted services amended to include
‐ Trading has been defined as an exempted service under the Credit Rule ‐ “Orion Appliances v. CST, 2010‐TIOL‐752‐CESTAT‐AHM” ‐trading activity is nothing but purchase and sales & covered under sales tax law, ‐ not be appropriate to call it a service ‐ held cannot considered as exempted service also.
‐ Services which are partially exempted (on which abatements are prescribed) and on which CENVAT credit is not permitted to be availed or utilized
Changes in Cenvat RulesChanges in Cenvat Rules
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TRU’s Clarification Circular No. 943/4/2011‐CX., dated 29‐4‐2011 on issues relating to CENVAT Credit Rules 2004:‐
‐ Negative list ‐ Goods and services for which credit has been disallowed ‐only illustrative and not exhaustive ‐ Principle Personal use or consumption of Employees.
‐ Inputs’ ‐ “no relationship whatsoever with the manufacture of a final product” ‐ Goods such as furniture and stationary used in an office within the factory construed goods used in the factory ‐ Credit of the same allowed.
‐ Trading – Exempted Service – No credit of input or input services used exclusively in trading.
Changes in Cenvat RulesChanges in Cenvat Rules
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‐ What shall be the treatment of credit of input and input services used in trading before 1.4.2008? Credit of common inputs and input services could be availed subject to restriction of utilization of credit up to 20% of the total duty liability as provided for in extant Rules – Service Provider
‐ Common inputs and input services used in trading before 1/4/2011: the recent amendment clarifying that trading is an exempt service will have retrospective effect??
‐ Availability of credit on services received before 1 April 2011 on which credit is not allowed now – e.g. Rent‐a‐cab service ‐ Clarified that the credit on such services shall be available if their provision had been completed before 1 April 2011.
Changes in Cenvat RulesChanges in Cenvat Rules
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Rule 6 Takes Cenvat Credit on Inputs/ Input Services used for dutiable goods & taxable services but in case of both Dutiable/ Exempted goods or taxable or exempted Services ‐ Manufacturer / Service provider can avail credit and follow any of the options for reversal of inadmissible credits
‐ Maintain separate inventory and accounts for receipt, consumption of inputs and input services used for exempted goods & exempted output services – Rule 6(2)
‐ Not able to maintain Separate accounts – then pay 5% of exempted goods or exempted service (earlier 6%) –Rule 6(3)(i)
‐ Pay an amount equal to Proportionate Cenvat Credit attributable to exempted goods & exempted output Services –Rule 6(3A) – Rule 6(3)(ii)
Exempted Goods & ServicesExempted Goods & Services
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‐ Maintain Separate account for inputs and pay amount as determined under Rule 6(3A) in respect of Input Services – Rule 6(3)(iii)
Rule 6(3A) Value of Trading Services = SP less COGS as determined GAAP or 10% of COGS
Banking or financial Institutions – Common Services used for investment/ interest income – Pay 50% of credit availed on Inputs/ Input Services.
ULIP or Insurance Company ‐ Pay 20% of credit availed on Inputs/ Input Services
Rule 6(5) – allowing credit of 16 services – deleted
Exempted Goods & ServicesExempted Goods & Services
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Point of Taxation Rules, 2011 Point of Taxation Rules, 2011 POT Rules Vides Noti No. 18/2011‐ST dt. 1‐3‐2011 & 25/2011‐ST dt. 31‐3‐2011STR‐Corresponding changes Vides Noti no. 03/2011‐ST dt. 1‐3‐2011
Change from Cash to Accrual/ Hybrid system – 1/4/2011
Point of Taxation (POT) ‘Point in time when a service shall be ‘deemed to have been provided’[Rule 2(e)]. This point will determine Rate of service tax and Due date of payment of service tax.
POT – 9 Rules Rule 3 General provisions & applicable ‘unless otherwise provided’. Rules 4 to 9 make provisions in respect of various special cases Provisions of Rule 3 apply only when any of Rules 4 to 9 are not applicable.10/3/2011 21
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Point of Taxation Rules, 2011 Point of Taxation Rules, 2011
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Determination of POT
NormalScenarioRule 3
Change inEffective RateRule 4
New ServicesRule 5
Continuous Supply of ServicesRule 6
Export of ServicesRule 7(a)
Import of ServicesRule 7(b)
Specified Services-Specified categoryRule 7(c)
Associated EnterprisesRule 7
IPR, Copy right Rule 8
Point of Taxation Rules, 2011 Point of Taxation Rules, 2011
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Date of Applicability POT
Provision of Service completed/invoice
issued prior to 1/4/2011
Provision of Service completed/invoice issued
between 1/4/2011 -30/6/2011
P of Service & invoice issued after
1/7/2011
NA – on Payment basis
Optional – on Payment basis Accrual basis
General Rule 3 General Rule 3 Rule 3(a) Date of invoice is normally ‘Point of Taxation’ ‐ For service provided or to be provided is issued.
Rule 4A of STR – Invoice to be issued within 14 days from the date of completion of service or receipt of any payments towards the value of such taxable service, whichever is earlier.
Unless otherwise stated, POT, the earliest of the following:
‐ When Invoice is issued Date of Invoice or Payment (Advance)‐ When Invoice is not issued within 14 days from Date of completion
of Service Date of Completion of Service or Payment
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General Rule 3 General Rule 3
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Point of Taxation Remarks
20/4/2011Invoice issued within 14 days & before
receipt of payment
10/4/2011Invoice not issued within 14 days & payment received after completion of
Service
15/4/2011Invoice issued within 14 days & but payment received before invoice
5/4/2011 for Part & 10/4/2011 for
respective amount
Invoice not issued in 14 days & Part payment before completion &
remaining later.
Sl.NoDate of
Completion of Service
Date of InvoiceDate of payment
received
110/4/2011 20/4/2011 30/4/2011
210/4/2011 26/4/2011 30/4/2011
310/4/2011 20/4/2011 15/4/2011
410/4/2011 26/4/2011
5/4/2011 (Part) & balance 25/4/2011
Rule 4 Rule 4 –– Effective RateEffective RateTaxable service was provided before change in effective Rate:
‐ Invoice issued and payment received after change of effective rate POT = Date of receipt of payment or Issue of invoice, whichever is
earlier• Q: Service was already provided prior to change
‐ Invoice issued prior to change but payment receipt after change in effective rate POT = Date of issuance of invoice
‐ Payment received before change in effective rate but invoice issued later POT = Date of receipt of payment
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Rule 4 Rule 4 ––Effective Rate Effective Rate
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Taxable service was provided after change in effective Rate:
‐ Invoice issued prior to Change but payment received after change in effective rate POT = Date of payment
• Q: Do we need to pay differential Tax
‐ Invoice issued and payment received both prior to change in effective rate POT = Date of issuing of invoice or Date of receipt of payment, whichever is earlier
‐ Invoice issued after change in effective rate but payment received prior to change in effective rate POT = Date of issuing an invoice
Rule 4 Rule 4 ––Effective Rate Effective Rate
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Change of Rate: 1‐5‐2011 8% ‐ 10%Date of Service Date of Invoice Date of Payment
9/5/2011 25/6/201128/4/2011 25/6/20119/5/2011 26/4/2011
28/4/2011 25/6/201128/4/2011 16/4/20119/5/2011 28/4/2011
28/4/2011
10/5/2011
Rate of Tax Date on Which Liability arises10% 9/5/20118% 28/4/20118% 26/4/2011
10% 25/6/20118% 16/4/201110% 9/5/2011
Rule 4 Rule 4 ––Effective Rate Effective Rate
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Change in effective Rate of Tax includes:
‐ Change in portion of Value on which Tax is payable in terms of Notification issued under the provisions of Finance Act, 1994 or Rules made there under.
‐ Change in Rate of Abatement or
‐ Change in Rates under composition scheme will also change in effective rate of Tax.
Rule 5 Rule 5 –– New ServicesNew Services
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Scenario Rule First Event Subsequent Event Point of Taxation
5(a)
Invoice issued & Payment received
before Service became Taxable NA
No Service Tax Payable
5(b)
Payment received before Service became
Taxable
Invoice issued with in 14 days of Completion of
Service No Service Tax Payable
3(a)
Service provided before tax became applicable
Invoice issued with in 14 days of Completion of Service and payment received after Service
became taxable
No Service Tax Payable
New Services brought under Tax net
Rule 6 Rule 6 –– Continuous Supply Continuous Supply
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Continuous Supply of Services Service provided continuouslyunder a contract for period more than 3 months OR Other notifiedservices
POT….The Earliest of the following:‐ Date of issue of invoice‐ Date of Receipt of payment
Where contract identify event – Completion of such eventE.g.: Payment on completion of first floor“Completion of Service” ‐ Circular No. 144/13/2011‐ST dated 18‐07‐2011 clarifying related activities but not flimsy or irrelevant
In case of advance, such receipt of advance is Point of taxation
Rule 6 Rule 6 –– Continuous Supply Continuous Supply
‐ Services notified as continuous supply (Notification 28/2011‐ST)
• Telecommunication/ Internet Telecommunication Service• Commercial or Industrial Construction• Construction of residential Complex• Works Contract Service – Even less than 3 months
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Rule 7 Rule 7 --ExportExport
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Nature of ServicePoint of
Taxation (POT)
When Cenvat Credit available to Service Recipient
Conditions
Export of serviceDate of Receipt of Payment
NAIf payment is not received within time, prescribed by RBI,
POT as per normal provisions
Non–Receipt of Payment Normal POT Date of Invoice ‐1/4/2011 & Date of Payment ‐15/10/2011 – Interest/ Change of Rate Is Export benefits done away POTR is not charging section/ provisions Does not override Export Rules No Corresponding changes in Export Rules No Specific time period defined for receipt of payment in Export RulesPeriod defined by RBI – 6/ 12 Months ‐RBI/2009‐10/513, A.P. (DIR Series) Circular No.57,June 29, 2010Refund/ Rebate available of same ??
Rule 7 Rule 7 --ImportImport
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Reverse Charge Mechanism –S.68(2) ‐ GTA, Services of mutual fund agent and insurance agent, sponsorship services etc.Non Payment within 6 months Normal POT Date of Invoice ‐1/4/2011 & Date of Payment ‐15/10/2011 – Interest/ Change of Rate
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Nature of ServicePoint of
Taxation (POT)
When Cenvat Credit available to Service Recipient
Conditions
Persons required to pay service tax as Recipient of service (Reverse Charge Mechanism)
Date of Payment
Date of payment of Value & Service tax
mentioned on Invoice
If payment is not made within 6 months from the date of invoice, POT would be as per normal provisions.
Therefore, if after six months payment for invoice has not been made, then there would be liability to pay service tax but no corresponding credit would be available
Rule 7 Rule 7 ––Specified ServicesSpecified Services
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Q: Why 7+1 Specified Services – SSP under other categories
Nature of ServicePoint of
Taxation (POT)
When Cenvat Credit available to Service Recipient
Conditions
Individuals/ Proprietorship/ Partnership firms providing specified
Services
Date of Receipt of Payment
Date of Receipt of Invoice
A) Specified Services: ‐ Architect, Interior Decorator, Chartered Accountant/ Company Secretary/ Cost
Accountants/Scientific & Technical consulting/ Legal Service AND “Consulting Engineer Service”
B) Credit is available to the Service Recipient on receipt of invoice though no amount has been paid to the Service
Rule 7 Rule 7 ––Associated EnterpriseAssociated EnterpriseService Provider Located outside
IndiaIn India
POT
Book Entry or payment made
whichever is earlier
No Specific Rule
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Rule 8 of POTR defines POT for Royalties and payments pertaining to copyright, trademarks, designs, patents etc Long duration contracts exceeds 3 months.Rule 6 of POTR defines POT for Continuous supply of services Rule 6 starts with Non‐obstante clause “Not anything contained in Rule 3, 4 or 8”. Rule 6 clearly overrides Rule 8 of POTR
Rule 8 Rule 8 –– IPR, Copyrights, etc. IPR, Copyrights, etc. Service relating to intellectual property, Patent, Copyrights, etc.Where consideration not ascertainable at the time of performance
‐ Deemed to have been provided each time when:
Payment is received by the provider, or Invoice is issued by the provider,
whichever is earlier.
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Point of Taxation Rules Point of Taxation Rules
Consequential Amendments
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Cenvat Credit Rules Cenvat Credit Rules Rule 4(7) amended
‐ Credit available on receipt of invoice provided Non‐payment within 3 months of date of invoice – Reversal required
‐ Re‐availment on payment of value of service and service tax‐ Where part of value of service received back‐ proportionate credit
to be reversed‐ For Reverse charge – Credit available on payment of Value of
service and service tax within 6 months‐ For invoices issued prior to 1/4/2011‐ Credit available on payment
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Cenvat Credit Rules Cenvat Credit Rules Rule 9 amended
‐ Supplementary invoice by service provider introduced as document for availing credit
‐ Except where additional tax become recoverable by reason of fraud, collusion etc.
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Service Tax Rules Service Tax Rules Rule 4A amended ‐ Invoice to be issued
‐ within 14 days of “completion of service”‐ For continuous supply – within 14 days of completion of each
specified event Rule 6(3) amended
‐ Amount of invoice renegotiated due to • Not providing service partly or fully for any reason or
• Deficient provision of service, or any terms contained in a contract
– Service provider can refund the amount to Service receiver with service tax or issue a Credit Note to service receiver except Bad debts.
‐ Then assessee can himself adjust the excess service tax paid by him against his service tax liability for the subsequent period.‐Allowed up to Rs. 2 Lakhs – Rule 6(4B) of STR 10/3/2011 41
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Service Tax Rules Service Tax Rules –– Rule 7Rule 7Report – 15 Lakhs Registered User – 6 Lakhs filing ReturnNotification No 43/ 2011–ST dated. 25 August 2011 W.E.F 1/10/2011 – Mandatory – All Assessee – To File Service Tax Return Electronically ‐ Irrespective of their Service tax liability in the preceding F.Y.Before:‐ Every taxpayer has to file half‐yearly returns in ST ‐3 (Triplicate),
either electronically or manually.
‐ W.e.f 1/4/2010 – Notification No. 1/2010‐ST Dated 19/2/2010 e‐filing compulsory for the taxpayers who had paid Service tax amounting to Rs. 10 Lakhs or more (including the amount paid by utilization of CENVAT credit) in the preceding F.Y.
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Late Filing of ST Late Filing of ST --3 3
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Period of DelayPenalty/late fee before finance
bill 2011
Penalty/ Late fee After Finance Act, 2011 (W.e.f. 01.04.2011)
for delay up to 15 days INR 500 INR 500
for delay beyond 15 days but up to 30 days
INR 1,000 INR 1,000
for delay beyond 30 days
INR 1,000 + INR 100 per day from 31st day subject to a maximum amount of Rs
2,000.
INR 1,000 + INR 100 per day from 31st day
subject to a maximum amount of Rs 20,000.
Rule 7C of STR read with S. 70(1) of the Finance ActWhere Service tax payable is nil, officer may, on being satisfied that there is sufficient reason for not filing the return, reduce or waive the penalty
Payment of Service Tax Payment of Service Tax
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Rule 6(1)of STR read with S. 68 of the Finance Act
By 5th/ 6th of Next Month – Manual/ e‐payment
Monthly/ Qtr – Individual/ Proprietorship or Partnership Firm
March – 31st March – All cases
Accrual basis/ Collection basis for specified 8 Services w.e.f 1/4/2011
Detailed process for e‐payment & e‐filing Read Circular No.
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919/9/2010-CX., dated 23-3-2010 on “E-payment of taxes/duties and e-filing of returns — Procedure”
