Place of provision of Service Rules, 2012 (PPS Rules)

Background

Section 66B of Finance Act, 1994 levies service tax on value of all services provided or agreed to be provided in the taxable territory by one person to another. Section 66C grants powers to the Central Government to frame rules to determine the place where the services are provided or deemed to be provided, etc.

The Central Government in accordance with the powers granted by section 66C of the Finance Act 1994 has notified the Place of Provision of Service Rules, 2012 vide Notification 28/2012 – Service Tax dated 20.06.2012.

Place of Provision of Service Rules, 2012 (PPS Rules)

The PPS Rules are effective 01.07.2012 under the negative list regime.  The PPS rules supersedes the Export of Services Rules (Notification 9/2005 dated 03.03.2005) and the Import of Services Rules (Taxation of Services [Provided from Outside India and Received in India] Rules, 2006) dated 19.05.2006.  The important provisions of the rules have been discussed chronologically in the article.

Note – The latter rules have superiority over the former rules when determining the place of provision of service (Rule 13).

Rule 3 – General Rule

Rule 3 lays down the general rule that the location of the service recipient would be considered as the place of provision of service.  However, where the location of the service recipient is not available in the ordinary course of business, the place provision would be the location of service provider.   Rule 3 is a residuary rule and is applicable to a transaction which not covered by the subsequent rules.

Rule 4 – Place of Performance – Where presence of goods/ individual is essential

Rule 4(a) states that in cases where the physical presence of goods is essential in providing the services, the place of provision of service would be the place of actual performance of the service.  Under this rule, actual performance of service would be the driving force rather than the place of delivery or consumption of service.  As an exception, where services have been provided from a remote location by electronic means, the location of the goods at the time of provision of service would be considered as the place of provision.  In effect, the location of goods would determine the performance and hence its place of provision.

Rule 4(b) which relates to individuals also operates on similar lines and the place of actual performance determines the place of provision of service.

Typically, services in the nature of warehousing, transportation, repair, maintenance, testing, health care, education, etc would qualify under this rule.

Rule 5 – Location of immovable property where service in relation to immovable property

Place of provision for services in relation to immovable property would determined based on the location of immovable property.  Services in relation to a proposed immovable property would be also determined based on the intended location. The essential condition of the service is that the service should be in relation to an ‘immovable property’ and not goods/ individual.

Typically, services in the nature of renting, construction, interior decoration, hotels, guest house facility would be covered under this rule.

Rule 6 – Location of event – Services in relation to admission or organization of specified events, conferences, etc

Place of provision for following services would be the place where the event, conference etc is actually held:

(a) Services in relation to admission or ancillary to admission of the event

(b) Services in relation to organization of event

Typically, services in the nature of hiring equipments, sale of tickets (except entertainment event which are in negative list), catering services, etc would be covered under this rule.

Rule 7 – Part performance of service in taxable territory as well as in non-taxable territory

Where any service in respect of which rule 4, 5 or 6 apply is provided at more than one location including the location of taxable territory, the place of provision of service would be the location of taxable territory where the greatest proportion of service is provided.  Hence, where services are partly performed in taxable territory and non-taxable territory, the complete service would be deemed to be performed in the taxable territory irrespective of the proportion of service performed in non-taxable territory.

Rule 8 – Location of service receiver and provider in taxable territory

Where the service receiver and service provider are located in the taxable territory, the provision of service would be the location of service receiver irrespective of where the service is performed, delivered or consumed.

Rule 9 – Place of provision of specified services

Place of provision for specified services (i.e. services of banking or financial institution to account holders, online information and database access or retrieval services, intermediary services and services of hiring means of transport up to period of one month) would be location of service provider.

Intermediary refers to agents, brokers or any person who facilitates the provision of the main service and would not include the person who provides the main service on his account.

Rule 10 – Goods transportation service

Place of provision for transportation of goods other than by mail or courier would be the destination of the goods.  In case of services of goods transport agency to which the reverse charge mechanism applies, the location of the person liable to tax would be the place of provision.

Rule 11 & 12 – Passenger transportation service and services on board the conveyance.

Place of provision for passenger transportation service is the place where the passenger embarks for continuous journey.  Further, the place of provision in case of services wholly consumed on board the conveyance would be the first scheduled point of departure of the conveyance.

It can be observed that the Place of Provision of Service Rules aims to reinforce the consumption based destination tax principle of the service tax law.

Out of aforesaid rules , there are explanation of few  rules which are given below:

Analysis of Rule 7

Rule 7 – Part performance of service in taxable territory as well as in non-taxable territory

Where any service in respect of which rule 4, 5 or 6 apply is provided at more than one location including the location of taxable territory, the place of provision of service would be the location of taxable territory where the greatest proportion of service is provided.  Hence, where services are partly performed in taxable territory and non-taxable territory, the complete service would be deemed to be performed in the taxable territory irrespective of the proportion of service performed in non-taxable territory

This Rule can be explained by following illustration:

“An Indian firm provides a technical inspection and certification service for a newly developed product of an overseas firm (say, a newly launched motorbike which has to meet emission standards in different states or countries). Say, the testing is carried out in Maharastra (20%) , Kerala (25%), and  an International location say ( London55%)

Notwithstanding the fact that the greatest proportion of services is outside the taxable territory, the place of provision will be the place in the taxable territory where the greatest proportion of service is provided, in this case Kerala”

Applicability of Rule 7:

This rules is applicable for the services for which place of provision of service is determined based on Rules 4, 5 & 6. This Rules does not apply where the place of provision is determined based on Rule 3 i.e. place of provision is receiver of service. For Example, Chartered Accountant located in Mumbai provides opinion on Income Tax to firm located in London. The Chartered Accountant has studied the brief statement of the facts and analysis various legal provision, drafts and finalizes the opinion in Mumbai and thereafter the opinion is sent through courier to the firm in London. The place of provision of service in such a case is determined under Rule 3 as the location of service receiver is London. In this case the provision of Rule 7 will not apply. In this case Chartered accountant receives the amount in foreign convertible currency, it will be considered as Export of Services.

Rule -8 Where the service provider and service receiver are located in taxable territory, the provision of service would be the location of service receiver

Analysis of Rule 8

Provision of this rules can be explained by way of an example say company x located in Mumbai organizes the tour to Bangkok and Japan. The participants are located in Bangalore, Hyderabad and Ahmadabad. The service provider in this case is M/s X and the service receivers are located in Bangalore, Hyderabad and Ahmadabad. Although the service will be provided outside India that is tour will be conducted outside India , yet as per this rule , the place of provision of service would be the location of the service receiver that  Bangalore ,Hyderabad and Ahmadabad. Since all the 3 places fall under the taxable territory, service tax will be payable by M/s X.

Manner of determination of the location of service receiver.

‘Location of service recipient’ – Rule 2(i) defines location of service recipient to be registered premises of the service recipient.  However, where the service recipient has not obtained a service tax registration or a decentralized registration has been obtained by exercising the option under Rule 4 of service tax rules, the location of service recipient would be determined as follows:

i.  Location of business establishment, or

ii. Where service is used at a place other than business establishment (ie fixed establishment), the location of fixed establishment

iii.  Where services are used at more than one establishment, the establishment most directly concerned with the use of the service

iv. In the absence of the above, at the usual place of residence

Explanation 1: For the purpose of clause (iv) usual place of the residence in case of body corporate means the place where it is incorporated or otherwise legally constituted.

Explanation 2: For the purpose of clause (i), in the case of telecommunication services, the usual place of residence shall be billing address.