ST return scrutiny: How to combat

Service Tax has been most targeted area of Central government for garnering revenue and it has been constantly undertaking measures to pluck the revenue leakage. One such measure has been taken by issuing detailed manual scrutiny norms of Service Tax Returns vide Circular No. 185/4/2015-ST.

Paper writer has made an attempt to analyse new provisions in the scrutiny norms and how small taxpayers can guard themselves against departmental actions.

Manual scrutiny norms issued by CBEC vide circular no. 113/07/2009-ST in 2009 have been losing their relevance due to advent of Negative List based service tax regime, Point of Taxation Rules and many other changes in the law and rules made thereunder. Further, both Income Tax and Service Tax departments have becoming more tech savvy over the period.

The detailed manual scrutiny would be applicable to returns filed by those assesses who are not being audited i.e. assesses whose total tax paid (cash + Cenvat) for the FY 2014-15 is below Rs. 50 Lakhs. Each Commissionerate has to select equal number of assesses for carrying out return’s scrutiny from each of these three total tax paid band (Cash +Cenvat) viz. Rs. 0 to Rs. 10 lacs, Rs. 10-25 lacs and Rs. 25-50 lacs for FY 2014-15.

As the assessee who are target of return scrutiny would be small assessee who may not have much knowledge of the law, it becomes very important for their consultants to guide them in the manner in which internal checks must be built, books of account to be maintained and ST-3 return to be filed. This could make sure that assessee is adequately complying with the law and is not harassed by department. Following could be some areas which if borne in mind could safeguard assessee to a great extent.

S. No.	Area of examination	Reason of differences/deviations and suggested course of action
1.	Difference between value of services shown in ITR and ST-3	Exempted services provided but not shown in ST-3 Abatement services shown net of abatement Advances from customer shown in ST-3 but not in ITR Works contract etc. not properly disclosed in ST-3 (only taxable part shown) Services provided liable under RCM but not shown in ST-3 Amount claimed as reimbursement by issuing debit note and adjusted from respective expenditure in the ITR And many more……….. Suggested to give exhaustive disclosure in ST-3. Allegation of suppression could be avoided. (minimum penalty 15%. Ranges upto 100%) Wherever genuine difference, develop proper SOP for preparing reconciliation statement.
2.	Cross verification with the 26AS	Classification of services to be cross checked with the section under which TDS deducted Where tax paid under concessional rate under service tax but category mentioned in the list of services specified under respective TDS section is different, could be difficult to convince to superintendent/inspectors
3	Cross verification of exempted service	May be possible that exempted services not disclosed and to that extent difference between ST-3 and ITR During verification, dept may ask for invoices and agreement. May be possible that agreement not available or terms of agreement contradict with invoice or invoice not properly prepared or tax clause mentioned in the agreement. Could land up with problem
4	Verification of services claimed to be exported	Mere receipt of consideration in foreign currency not determinative criterion for export Need to see Place of provision of service rules Also see if consideration received within RBI stipulated time period Proper disclosure in the return very important
5	Verification of abatement eligibility	Certain services eligible for abatement subject to conditions of non availment of credit on input/input service/capital goods If any abatement taken, make sure conditions complied with. Become very crucial in case service provider engaged in providing multiple services where few services are taxable rate while few are conditionally abated Condition of exemption notification to be complied with literally. Small non compliance may result in very large trouble. If by mistake credit availed with abatement, could be reversed under Rule 6 Nexus of input service to output service very important
6	Value of Taxable services	This is going to be very hot area for examination. Especially after reimbursement becoming taxable Department going to check each and every condition (out of 8+4) literally in case tax not paid claiming pure agent Pure agent agreement is must. In case pure agent exclusion claimed, no credit against expenditure incurred for that eligible. Whether valuation made as per Valuation Rules, wherever applicable. Especially in case of works contract Free supply by service receiver also going to be examined minutely
7	Credit eligibility on capital goods	Before availing credit on capital goods, always cross check the same with the definition of capital goods. Exclusion clause of motor vehicle very crucial Many times assets capitalised for Income Tax but assessee treating it capital goods, avail the credit. May be possible that it may fall outside definition of capital goods under CCR Removal of capital goods on which credit availed earlier require reversal of credit based on usages. If sale of assets appear in ITR/Capital assets schedule, make sure credit availed is reversed proportionate to the time of usage. If capital goods partly used for taxable activity and partly for exempted activity, full credit is available See proper treatment for location of capital goods, leasing, capital goods sent to job worker etc. Correctness of invoice in all aspects especially rule 9 of CCR Availment of credit on capital goods to be shown under column I3.1.2.2 of the ST-3 return
8	Credit eligibility on Input	Before availment of credit, refer definition of credit of input Exclusion clause of the definition very crucial Specifically keep in mind in case of works contract where credit on input allowed under CCR but restricted in the valuation rule If item not falling in the definition of capital goods, see if could be covered in input Availment of credit on input to be shown under column I3.1.2.1 of the ST-3 return Whether time limit of one year followed in availment of credit
9	Credit on input service	Most relevant and sought after area of department. Will verify each of the input service credit availed Construction, renting of vehicle, personal consumption etc. credit not eligible Services used exclusively in exempted/negative list services not eligible credit Also keep in mind services used for providing conditional abated services Availment of credit on input service to be shown under column I3.1.2.3 of the ST-3 return Whether time limit of one year followed in availment of credit
10	Use of input and input services commonly for taxable as well as exempted services	If service provider providing both taxable/exempted service, would be again most sought after area of department If engaged in trading as well as rendering of service, remember to reverse the credit pertaining exempted portion in trading activity Evaluate different option available to see which option is most feasible/beneficial/cost effective based on assessee profile Strictly comply with the conditions associated with each of the options. File all necessary declaration with the department wherever required Make proper disclosure in the ST-3 Return in Part I of the Return. Make sure that proper disclosure is made under each of the column i.e. whether exempted goods/services cleared, value of exempted goods/services provided, amount paid under Rule 6 provisionally, amount paid at the end of year and so on… Input services used exclusively for taxable services + common input services, dept could ask for applying rule 6 on all input service especially in light of recent decision
11	Adjustment of credit under Rule 6 (3) of STR	Tax paid earlier but credit note issued subsequently could be eligible for set off subject to conditions set out in Rule 6(3) of STR Going to examine all credit notes to see if they comply with the conditions of Rue 6 (3) Adjustment against Rule 6(3) to be disclosed properly in the return. Can not be taken in input service Especially important to note where tax paid in one return period while credit note issued in different return period. To that extent there could be difference in the revenue of ITR and ST-3
12	Adjustment of advance tax paid: Rule 6 (4A) of STR	Erroneously excess tax paid in earlier period can be adjusted in future period. Whether proper disclosure made in the ST-3 Return. Proper calculation sheet to be maintained for extra tax paid along with its reasons and the manner of adjustment
13	Reverse Charge on Import of Service	All foreign currency payment would be monitored closely to see if liability arises under RCM If TDS deducted under section 195, this could be verified from TDS Return. Will be cross examined if RCM liability paid Also see if TDS included for calculation of liability under RCM Very crucial to see exchange rate used for discharging of liability. Exchange rate as used in the books of account on the date of payment would be relevant. Not necessary to take Customs notified rate All foreign payment need not be covered by RCM. If payment made in foreign currency but place of provision falls outside India, very important to have proper documentary evidence of nature of transaction to justify that its non taxability in India.
14	Other Reverse Charges	Grouping of expenditure in the P&L very important. E.g. legal and professional charges include professional fees from other than advocate also. Dept could ask to pay RCM on all expenditure booked in the ledger. Else prepare reconciliation statement. Expenditure booked in transportation/freight charges but services not availed from Goods Transportation Agency Purchase of material for repair purpose booked under repair and maintenance charges Manpower supply on professional basis booked under head labour charges Donation given. Could ask to pay under RCM as sponsorship services. Company owned vehicle used but driver salary booked under renting of motor vehicle charges Department likely to take total of expenditure based on nomenclature used in P&L and based on that may ask for payment under RCM. Service Tax paid under RCM needs to be properly disclosed in the Return. If abatement available on service liable under RCM, see if conditions of abatement satisfied fully. Section under which TDS is deducted also relevant. Services liable under RCM need to be registered in registration certificate. Taxes must also be paid under correct accounting code.

By CA Ashish Chaudhary
B.com, ACA, CS

Conclusion: There are many other aspects which could be relevant for assessee. As it may not be possible to discuss all aspects exhaustively, most common errors have been discussed for benefit of small and medium size assesses. For any other query/feedback, you can write at ashish@hiregange.com