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SERVICE TAX


IPCC



SUDHIR SIR KEE CLASS- 2



THE LAW OF SERVICE TAX



-CA SUDHIR HALAKHANDI

 

NOTICE BOARD

THIS MATERIAL IS PREPARED IN  UNIQUE CLASSROOM ATMOSPHERE AND THERE ARE LOT OF POSSIBILITIES OF  IMPROVEMENT- PLEASE SEND YOUR SUGGESTIONS- PLEASE POINT OUT THE MISTAKES SO THAT BETTER MATERIAL CAN BE PROVIDED TO THE STUDENTS THROUGH OUT THE COUNTRY THROUGH CAclubindia.com

CA SUDHIR HALAKHANDI

 

 

 

1.CONSTITUTIONAL POWER TO INTRODUCE SERVICE TAX

 

 

CA SUDHIR HALAKHANDI: - Students after going through the brief of service tax in my earlier class, today we will talk about the law of service tax in our country and I will tell you how the Government of India got the power to tax the services and further how this tax is being administered legally in the country.

 

 

SHEFALI: - Sir, Government needs any power to introduce the taxes?

 

CA SUDHIR HALAKHANDI: - Yes it needs and the power is given by the Constitution of India and without authorization from constitution no tax can be imposed.

 

Article 265 of constitution of India says that:-

 

No tax shall be levied or collected except by the authority of Law. 

 

The taxes can only be imposed under the authority of law given by the Constitution of India. The constitution on India through its schedule VII has made the three lists and these list are related to the powers of Central Government and State Governments to make laws and details of there three lists are as under:-

 

LIST ONE

1. Union List- The list contains the matters in respect of which Central Government can make the law.

LIST TWO

2. State List: - The list contains the matters in respect of which State Governments can make the law.

LIST THREE

3. Concurrent List: - The list contains the matters in respect of which Central and State Governments both can make the law.

 

So students do you understand that any law including the taxes can not be imposed without constitutional authority and constitutional authority of the central Government and the state Government is well defined in the Constitution of India.

 

IS THAT OK??

 

 

STUDENTS: - YES SIR!!!!!

 

 

NITIN: - Sir, our constitution was made in early fifties and service tax law was introduced in 1994. Is there any power in the constitution to authorize the Central Government to introduce tax on services?  I think sir, in early fifties the role of service sector was not so prominent in our country.

 

CA SUDHIR HALAKHANDI: - Very intelligent question!! Yes when constitution was made in early fifties there were very low contribution from the service sector in the GDP hence no specific provision was made in the constitution with respect to service tax  but see in List first (Union List) there is a entry which I am narrating you :-

 

Entry No. 97:- Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

 

This is residuary entry and according to it if any thing including any tax not mentioned in List II (the state subject) or List III (The concurrent subject- both Central and state has the power) will be covered under it i.e. in List I (The Union List-Central List)

 

By using this power of entry No. 97 (List I), Central Government introduced Service Tax in 1994.

 

Is that Clear??

 

 

STUDENTS: - YES SIR!!!!!!

 

LOVKESH: - Sir, still service tax is not specifically authorised in the constitution?

 

CA SUDHIR HALAKHANDI: - No this is not the present situation , the 92nd Amendment in the constitution has made the entry clear and in List I i.e. in union list entry No. 92 C was added as under :-

 

92C:- Taxes on Services

 

It is effective from 7-01-2004.

 

 

 

VINITA: - Sir, it means now there is a clear entry in the union list to authorize the Government to introduce Tax on services but sir what about the situation between 1994 an 2004 ? The introduction of Service tax in 1994 was perfectly constitutional?

 

CA SUDHIR HALAKHANDI: - I earlier told you that in 1994 it was introduced through entry No. 97 (Residuary entry as mentioned above) and through this entry it was also constitutionally valid.

 

A new article 286A was also inserted in the constitution and also amendment has been made in the Article 270 which I will discuss in any of the next class. These are also related to the powers of the Government to introduce and administer the Service Tax.

 

 

NATURE OF SERVICE TAX

 

CA SUDHIR HALAKHANDI: - See students, Service tax is a tax on services though in most of the cases it is collected and deposited by the Service provider but it is an indirect tax and the service provider collects it from the service receiver hence he is passing on the burden of tax on the other persons and only acting as an colleting agent. So service Tax is a?????

 

 

STUDNETS: - INDIRECT TAX SIR!!!!!

 

CA SUDHIR HALAKHANDI: - Ok Now it is clear that service tax is an Indirect tax and further you should note that it is not a tax on a particular profession, trade or employment but it is a tax on services rendered. 

 

See the Websters Concise Dictionary and get the meaning of services.

 

 Service means a useful result or product of Labour, which is not a tangible commodity.

 

Thus see basically service is a value addition that can be perceived but which can not be seen hence it is an intangible value addition. Selling goods is a tangible activity but providing services is not a tangible commodity but none the less it also provides value addition.

 

See it the CHA (Custom House agent) is providing his services to the exporter of Goods. The manufacturer of goods supplied the goods to the exporter but the same can not be exported without services of the CHA. Hence the services provided by the CHA are also adding the value to the goods.

 

 

SERVICE TAX IS NOT A TAX ON PROFESSION OR TRADE

 

NITIN: - Sir, Chartered accountants, Company secretaries, cost accountants and Custom house agents etc. are covered under the net of service Tax. Sir is it a tax on these profession?

 

CA SUDHIR HALAKHANDI: - Here see that Service tax is a tax on services not on a profession or trade. If A is a Custom house agent and providing services to various exporters then the tax is imposed only when he provides services and if during a certain period he fails to get any client then no tax is payable since it is a tax on services and not on a particular profession or trade.

 

 

NITIN: - Sir, How can we differentiate the Providing services or selling Goods especially when Goods are also used in providing services?

 

CA SUDHIR HALAKHANDI: - Yes, then we have to go for predominant factor and if using the goods is only incidental to the providing the services then it can not be said that no services is provided.

 

 

APPLICABILITY OF SERVICE TAX

 

ROHAN: - Sir, you told us that the service tax law is applicable through out India except Jammu and Kashmir. See sir , if the services are provided in Maharashtra by a person who has his office or establishment at J&K then what will be the situation?

 

CA SUDHIR HALAKHANDI: - Yes Rohan it is also an important question. As I told you that service tax is a tax on services and not on particular profession or trade and on the same footing the services provided in the J&K are not liable to  service tax but if the services are provided at any place other than J&K by the person who has his establishment in J&K then service tax will be applicable.

 

SANJAY :- And sir, I a person having his office at New Delhi and providing some services in J&K then what will be the situation ?

 

CA SUDHIR HALAKHANDI: - Yes since service tax is not applicable in J&K then the service provided in J&K even by the person having his establishment outside J&K will also be not taxable.

So students please remember for the examination point of view also The services provided by a person outside J&K who has his office or establishment in J&K will be taxable and the services provided by a person in J&K will not be taxable even if the person providing services has his office or establishment outside J&K.  

It is the place where services are provided is important and not the place from where service provider belongs or has his office or establishment is important.  

 

Is that Clear???

 

STUDENTS: - YES SIR!!!!!

 

INFORMATION FOR NEXT CLASS

 

 

THE SERVICE TAX LAW

 

CA SUDHIR HALAKHANDI:- As I told you in the earlier class that No separate service tax Act is made in our country and service tax is introduced in India through Chapter V of the Finance Act, 1994 and further the law of service tax is Governed in our country through the following :-

 

1. The Finance Act, 1994   Section 64 to Section 96 of the Finance Act, 1994

2. The Service Tax Rules, 1994

3. The Notifications issued by the Central Government.

4. Circulars and Office Letters (instructions) on Service tax

5. Orders on Service tax

6. Trade Notices on service Tax

 

 

In the next class we will see in detail all these Six and also the administration of service tax in our country.

 

Till then Good bye students, have a nice day!!!!!

 

 

 

STUDNETS: - THANK YOU SIR!!!!!!

 

End

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