taxable services - Important for CA final Exams

Shyam Murarka , Last updated: 01 September 2008
Share

TAXABLE SERVICES

Description of service

Coverage

Exclusions/Exemptions

Architect

Statutory coverage

Services in the field of architecture.

Case Law/Board Circulars

· Designing or planning of construction of buildings, bridges, dams etc. and its supervision

Exclusions

Actual execution of work is not Architect’s services.

Interior design may be covered only to the extent of architecture.

No tax on material, furniture and temporary structures

Exemptions

· See para 12.3 for general exemptions.

Banking and Financial services

Statutory coverage

Service by a banking company or a financial institution including NBFC, or any other body corporate or commercial concern, is taxable.

Financial leasing services including equipment leasing and hire-purchase.

· Merchant banking services

· Securities and foreign exchange (forex) broking;

· Asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services

· Advisory and other auxiliary financial services including investment and portfolio research and advice, advice on mergers and acquisitions and advice on corporate restructuring and strategy

· Provision and transfer of information and data processing;

· Banker to an issue services

Other specified financial services [section 65(12)]

Case Law/Board Circulars

· Cash management taxable

· Business chit funds are taxable - CBE&C Ref Code 034.04/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007

Exclusions

Hire purchase finance not taxable – Bajaj Auto Finance v. CCE (2007) 9 STT 569 (CESTAT).

Money changers who buys and sells foreign exchange without charging commission or brokerage is not liable - Ref Code 034.01/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007.

Stock Exchanges, commodity exchanges, stock clearing house services not liable – CBE&C letter No. 137/57/2006-CX.4 dated 18-5-2007

Simple chit funds not taxable but business chit funds taxable - CBE&C Ref Code 034.04/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007

No service tax on entry and exit load charged by mutual fund to the investor

Exemptions

Services provided to Government for tax collection exempt- Notification No. 13/2004-ST dated 10-9-2004.

Services provided by RBI exempt –Notification No. 22/2006-ST dated 31-5-2006.

No service tax on interest charged by service provider - rule 6(2)(iv)

See para 12.3 for general exemptions.

Business auxiliary services

Statutory coverage

·Promotion or marketing or sale of goods produced or provided by or belonging to the client

·Promotion or marketing of service provided by the client

·any customer care service provided on behalf of the client

·procurement of goods or services, which are inputs for the client

·production or processing of goods for, or on behalf of, the client

·provision of service on behalf of the client

·a service incidental or auxiliary to any activity specified above, such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision.

services as a commission agent [section 65(19)]

Case Law/Board Circulars

· Job work liable to service tax, but job work done under Cenvat provisions exempt. Job work not taxable if it amounts to ‘manufacture’.

Exclusions

‘Information Technology Service’ means any service in relation to (a) designing or developing of computer software, or (b) system networking, or (c) any other service primarily in relation to operation of computer systems, is excluded.

Activity that amounts to “manufacture” within the meaning of section 2(f) of the Central Excise Act is excluded.

Exemptions

The services of production or processing of goods in relation to agriculture, printing, textile processing or education are fully exempt [Notification No. 14/2004-ST dated 10-9-2004].

Job work exempt if the goods after processing are returned back to client (raw material supplier) for use in or in relation to manufacture of ‘other goods’ by the client. The ‘other goods’ should be such that appropriate duty should be payable on such goods - notification No. 8/2005-ST dated 1-3-2005.

Job workers of parts and accessories of cycles, cycle rickshaws and hand operated sewing machines have to payservice tax is payable on 70% of gross amount if gross amount is inclusive of cost of inputs and input services. The ‘exemption’ is available if job worker does not avail any Cenvat Credit – Notification No. 1/2006-ST dated 1-3-2006.

Services of commission agents in relation to sale or purchase of agricultural produce are exempt from service tax vide notification No. 13/2003-ST dated 20-6-2003.

Job work done in gem, jewellery and diamonds sector has been exempted vide notification No. 21/2005-ST dated 7-6-2005.

See para 12.3 for general exemptions

Business Support Services

Statutory coverage

Services provided in relation to business or commerce

Evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational assistance for marketing, formulation of customer service and pricing policies

Infrastructural support services

Other transaction processing [section 65(104c)]

Exemptions

· See para 12.3 for general exemptions

Cargo handling

Statutory coverage

Loading, unloading, packing or unpacking of cargo

Cargo handling services provided for freight in special containers or for non-containerised freight

Services provided by a container freight terminal or any other freight terminal, for all modes of transport

Cargo handling services incidental to freight [section 65(23)]

Exclusions

· Handling of export cargo or passenger baggage is excluded.

· Mere transportation of goods excluded.

Exemptions

Cargo handling services relating to agricultural produce or goods intended to be stored in a cold storage are exempt from service tax vide notification No. 10/2002-ST dated 16-8-2002.

See para 12.3 for general exemptions

Clearing & Forwarding Agent

Statutory coverage

Service, either directly or indirectly, connected with clearing and forwarding operations

It includes a consignment agent. [section 65(25)]

Case Law/Board Circulars

· Services of coal merchants, who are acting as buyer’s agents and carry out such jobs/assignments as asked for by respective consumers/buyers are covered under definition of C&F Agent and are liable to service tax - CBE&C letter F No. 159/1/2003-CX.4 dated 10-12-2003

Mere procuring or booking orders for the Principal by an agent on commission basis would not be ‘Clearing and forwarding Agent service’ - Larsen and Toubro Ltd. v. CCE (2006) 4 STT 231 (CESTAT 3 member bench)

A commission agent is not a ‘C&F’ agent – CCE v. Chandan Chemicals (2007) 9 STT 556 (CESTAT).

Exemptions

· See para 12.3 for general exemptions

Commercial or Industrial Construction

Statutory coverage

Following services used, or to be used, primarily for commerce or industry, or work intended for commerce or industry are taxable -

(a) construction of a new building or a civil structure or a part thereof

(b) construction of pipeline or conduit

(c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure

(d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit [section 65(25b)]

Case Law/Board Circulars

· Educational, religious, Government buildings etc. not taxable.

· If builder / promoter / developer undertakes construction work on his own without engaging the services of any other person, it is not taxable – Ref Code 079.01/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007.

· Sub-contractors providing the construction services (to main contractor or to any other person) will be liable to service tax.

Exclusions

· such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams [section 65(25b)]

If Vat/sales tax is payable on goods involved in the contract, the service will be classifiable under ‘works contract’ service tax.

Valuation

Any person providing taxable service of commercial or industrial construction can opt to pay service tax on 33% of gross amount charged. This is at the option of service provider This relaxation is not available if only completion and finishing services are provided - Notification No. 1/2006-ST dated 1-3-2006. The partial exemption is available only if the gross amount charged includes value of goods and materials supplied or provided or used by provider of the commercial or industrial construction of service for providing such service (Explanation to Notification No. 1/2006-ST]. However, value of land is not required to be added as it is neither goods nor material.

Exemptions

Construction and works contract services relating to port or other port are exempt. However, services of completion and finishing, repair, alteration, renovation, restoration, maintenance or repair provided in relation to existing port or other port are not exempt - Notification No. 25/2007-ST dated 22-5-2007

See para 12.3 for general exemptions

Construction of residential Complex

Statutory coverage

Following services relating to construction of residential complex comprising of a building or buildings, having more than twelve residential units, a common area; and one or more common facilities –

(a) construction of a new residential complex or a part thereof

(b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services

(c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex [section 65(30a) and [section 65(91a)] ]

Case Law/Board Circulars

· Sub-contractors providing the construction services (to main contractor or to any other person) will be liable to service tax.

Exclusions

· A complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person - “personal use” includes permitting the complex for use as residence by another person on rent or without consideration

If Vat/sales tax is payable on goods involved in the contract, the service will be classifiable under ‘works contract’ service tax.

Valuation

Any person providing taxable service of commercial or industrial construction can opt to pay service tax on 33% of gross amount charged. This is at the option of service provider This relaxation is not available if only completion and finishing services are provided - Notification No. 1/2006-ST dated 1-3-2006. The partial exemption is available only if the gross amount charged includes value of goods and materials supplied or provided or used by provider of the commercial or industrial construction of service for providing such service (Explanation to Notification No. 1/2006-ST]. However, value of land is not required to be added as it is neither goods nor material.

Exemptions

· See para 12.3 for general exemptions

Consulting Engineer

Statutory coverage

· Advice, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering but excluding the discipline of computer software engineering.

Case Law/Board Circulars

Technical assistance, training, software support are all ‘taxable services’ - In Nokia (I) P Ltd. v. CC (2006) 3 STT 209 (CESTAT)

Services of Valuation taxable - V. Shanmughavel v. CCE 2001 STT 132 = 6 STT 183 = 121 Taxman 274 = 2 STR 466 (Mad HC DB)

Contract for execution of a project is not consulting engineering service - Ircon International Ltd. v. CCE (2005) 2 STT 264 (CESTAT).

Royalty payment for use of technology and know-how cannot be equated with any services provided by foreign collaborator. Hence, no service tax is payable on such royalty payment - Navinon Ltd. v. CCE (2007) 6 STT 411 = 2004 STT 601 (CESTAT).

Exclusions

· Services in discipline of computer software engineering

Exemptions

Cess is payable under section 3 of Research and Development Cess Act, 1986, on transfer of technology. If such cess is payable, the consulting engineer will be granted exemption from service tax to the extent of cess paid - Notification No. 18/2002-ST dated 16-12-2002. Thus, if value of service is Rs 100, tax payable is Rs 12 and cess paid is Rs 5, net service tax actually payable will be Rs 7.

See para 12.3 for general exemptions

Courier

Statutory coverage

door-to-door transportation of time sensitive documents, goods or articlesutilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles [section 65(33)].

Case Law/Board Circulars

Basic postal services not taxable.However, courier services (Speed Post), insurance services (Postal Life Insurance), agency or intermediary services on commission basis which are also provided by other commercial organizations, are taxable - Ref Code 999.02/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007.

Co-loaders i.e. persons providing services to courier liable (earlier circular withdrawn)

Exclusions

· Basic postal services not taxable

Exemptions

· See para 12.3 for general exemptions

Credit Rating Agency

Statutory coverage

Credit rating of any debt obligation or of any project or programme requiring finance

Credit rating of any financial obligation, instrument or security for providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal [section 65(34)]

Case Law/Board Circulars

· Surveillance fee collected by a Credit rating agency is taxable.

Exclusions

· Information and advisory services rendered, research and information such as analysis of industries in a specific sector, financial and business outlook, indexing services, macro studies, financial modelling etc. are not in relation to credit rating and hence are not taxable.

Exemptions

· See para 12.3 for general exemptions

Custom House Agent

Statutory coverage

· Service in relation to the entry or departure of conveyances or the import or export of goods

Exemptions

· See para 12.3 for general exemptions

Franchise

Statutory coverage

· “Franchise” means an agreement by which the franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchisor, whether or not a trademark, service mark, trade name or logo or any such symbol, as the case may be, is involved [section 65(47)]

Case Law/Board Circulars

Some well known examples of franchise are - Coca-Cola, Pepsi, NIIT, Aptech, McDonald etc.

If vocational training is provided through franchisee, the service will be taxable under ‘franchisee service’ - Jetking Information Ltd. v. CCE (2007) 6 STT 444 (CESTAT)

Exemptions

See para 12.3 for general exemptions

Intellectual property

Statutory coverage

Transferring temporarily; or permitting the use or enjoyment of, any intellectual property right is taxable [section 65(55b)]

“intellectual property right” means any right to intangible property, namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright [section 65(55a)]

Exclusions

· Copyright service is excluded.

Permanent transfer of Intellectual Property not taxable

Exemptions

Cess is payable under section 3 of Research and Development Cess Act, 1986, on transfer of technology. If such cess is payable, the holder of intellectual property right will be granted exemption from service tax to the extent of cess paid. - Notification No. 17/2004-ST dated 10-9-2004. Thus, if value of service is Rs 100, tax payable is Rs 12 and cess paid is Rs 5, net service tax actually payable will be Rs 7.

See para 12.3 for general exemptions

Interior decorator

Statutory coverage

Planning, design or beautification of spaces, whether manmade or otherwise, in any manner

Advice, consultancy, technical assistance or in any other manner, services relating to planning, design or beautification of spaces

Landscape designer [section 65(59)]

Case Law/Board Circulars

Services of vastu/Feng shui consultants are taxable

No tax on material, furniture, and temporary structures

Exemptions

· See para 12.3 for general exemptions

Mailing list compilation and mailing

Statutory coverage

· Service in relation to— (i) compiling and providing list of name, address and any other information from any source; or (ii) sending document, information, goods or any other material in a packet, by whatever name called, by addressing, stuffing, sealing, metering or mailing; for, or on behalf of the client [section 65(63a)]

Exemptions

· See para 12.3 for general exemptions

Management or Business Consultant

Statutory coverage

Service in connection with the management of any organisation or business in any manner

Advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management [section 65(65)]

Exclusions

· Executory services would not fall under ‘consultancy services’ - Glaxo Smithkline Pharmaceuticals v. CCE (2005) 1 STT 37 (CESTAT) – quoted with approval in Glaxo Smithkline Consumer Healthcare v. CCE (2007) 9 STT 496 (CESTAT).

Exemptions

· See para 12.3 for general exemptions

Manpower recruitment or supply agency

Statutory coverage

Recruitment or supply of manpower, temporarily or otherwise, in any manner

Services in relation to pre-recruitment screening, verification of the credentials and antecedents of the candidate and authenticity of documents submitted by the candidate.

Case Law/Board Circulars

Academic/educational institutes providing recruitment services are taxable - Ref Code 010.01/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007.

Services of labour contractors are taxable w.e.f. 16-6-2005.

Service of providing employees of Agency to business or industrial organizations for a specific period is taxable - Ref Code 010.02/23.8.07 of CBE&C Circular No. 96/7/2007-ST dated 23-8-2007.

Exemptions

See para 12.3 for general exemptions.

Valuation

Service tax is to be charged on the full amount of consideration for the supply of manpower, whether full-time or part-time. The value includes recovery of staff costs from the recipient e.g. salary and other contributions. Even if the arrangement does not involve the recipient paying these staff costs to the supplier (because the salary is paid directly to the individual or the contributions are paid to the respective authority) these amounts are still part of the consideration and hence form part of the gross amount - per MF(DR) circular No. B1/6/2005-TRU dated 27-7-2005 para 22.4 (It is difficult to agree with this view. However, if the principal employer is in a position to avail Cenvat credit, it may be advisable to pay service tax on entire amount, instead of entering into fruitless and costly litigation).

Market research agency

Statutory coverage

· Market research in any manner, in relation to any product, service or utility, including all types of customised and syndicated research services [section 65(69)]

Exemptions

· See para 12.3 for general exemptions

Opinion poll

Statutory coverage

· Service designed to secure information on public opinion regarding social, economic, political or other issues [section 65(75a)]

Exemptions

See para 12.3 for general exemptions

Practising CA/CWA/CS Services

Statutory coverage

· Service by a Practising Chartered Accountant/Cost Accountant/Company Secretary in his professional capacity

Exemptions

Services provided by practising CA/CWA/CS in his professional capacity to a client, relating to representing before any statutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice, are exempt from service tax. All other services provided by practising CA/CWA/CS in his professional capacity are taxable (Notification No. 25/2006-ST dated 13-7-2006).

See para 12.3 for general exemptions

Public relations management service

Statutory coverage

· Service in relation to managing the public relations of another person

· “Public relations” includes strategic counselling based on industry, media and perception research, corporate image management, media relations, media training, press release, press conference, financial public relations, brand support, brand launch, retail support and promotions, events and communications and crisis communications [section 65(86c)]

Exemptions

· See para 12.3 for general exemptions

Real estate agent

Statutory coverage

Advice, consultancy or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate [section 65(89)]

Service in relation to sale, purchase, leasing or renting, of real estate.

Services of Real estate consultant [section 65(88)]

Exemptions

· See para 12.3 for general exemptions

Scientific and technical consultancy

Statutory coverage

· Service by a scientist or a technocrat, or any science or technology institution or organisation, in relation to scientific or technical consultancy

Case Law/Board Circulars

Exclusions

· Service tax is not payable by doctors, medical colleges, nursing homes, hospitals, diagnostic and pathological labs etc. as in common parlance they are not known as scientists, technocrats etc. - CBE&C letter No. B.II/I/2000-TRU dated 9-7-2001.

Exemptions

Notification No. 9/2007-ST dated 01.03.2007 exempts all taxable services provided by incubators.

Service tax exemption is also provided to incubates vide notification No. 10/2007-ST dated 1-3-2007:

See para 12.3 for general exemptions

Site formation and clearance etc.

Statutory coverage

Services in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities.

drilling, boring and core extraction services for construction, geophysical, geological or similar purposes

soil stabilization

horizontal drilling for the passage of cables or drain pipes

land reclamation work

contaminated top soil stripping work

demolition and wrecking of building, structure or road [section 65(97a)]

Exclusions

· Services in relation to agriculture, irrigation, watershed development

· Drilling, digging, repairing, renovating or restoring of water sources or water bodies.

Exemptions

Exemption to services relating to roads, airports, railways, transport terminals etc. bridges, port etc. - Notification No. 17/2005-ST dated 7-6-2005

See para 12.3 for general exemptions

Stock-broking

Statutory coverage

Service by a stock-broker in connection with the sale or purchase of securities listed on recognised stock exchange.

As per rule 6(1)(i) of Service Tax Valuation Rules (Earlier, it was Explanation 1 clause (a) to section 67 upto 18-4-2006), the value of taxable services shall include the commission or brokerage charged by a broker on the sale or purchase of securities including the commission or brokerage paid by the stock-broker to any sub-broker.

Case Law/Board Circulars

· No tax on turnover charges payable to stock exchange – prima facie view in JSEL Securities Ltd. v. CCE (2007) 8 STT 428 (CESTAT).

Exemptions

See para 12.3 for general exemptions

Storage and warehousing

Statutory coverage

· Services in relation to storage and warehousing of goods, including liquids and gases[section 65(102)]

Case Law/Board Circulars

Storage outside the port premises is taxable - Gujarat Chem Port Terminal Co. Ltd. v. CC (2005) 1 STT 98 (CESTAT)

Storage of empty containers taxable - CBE&C circular No. 60/9/2003-ST dated 10-7-2003

Exclusions

· Service provided for storage of agricultural produce or any service provided by a cold storage excluded [section 65(102)]

Exemptions

· See para 12.3 for general exemptions

Technical testing and analysis

Statutory coverage

Service in relation to physical, chemical, biological or any other scientific testing or analysis of goods or material or any immovable property

Clinical testing of drugs and formulations [section 65(106)]

Case Law/Board Circulars

· Sample collection centers not taxable– Dr. Lal Path Lab (P) Ltd. v. CCE (2006) 5 STT 171 (CESTAT),

Exclusions

· Testing or analysis service provided in relation to human beings or animals is excluded.

Testing or analysis for the purpose of determination of the nature of diseased condition, identification of a disease, prevention of any disease or disorder in human beings or animals is not taxable. Medical testing and diagnosis has been excluded from service tax [section 65(106)]

Exemptions

Testing and analysis of water quality by Government laboratories exempt - Notification No. 6/2006-Service Tax dated 1.3.2006.

Exemption to clinical testing of newly developed drugs - Notification No. 11/2007-ST dated 1-3-2007.

See para 12.3 for general exemptions

Transport of goods by air

Statutory coverage

· Transport of goods by aircraft

Exemptions

Service of transport of goods is exempt if it is in relation to transport of export goods by aircraft - Notification No. 29/2005-ST dated 15-7-2005.

See para 12.3 for general exemptions

Transport of goods by road

Statutory coverage

Service by a goods transport agency, in relation to transport of goods by road in a goods carriage.

‘Goods transport agency’ means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called [section 65(50b)]

Reverse charge - Person liable for payment of service tax

As per rule 2(1)(d)(v) of Service Tax Rules, Consignor or consignee who is paying freight will be liable to pay service tax, if consignor or consignee is any one of the following -

(a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948).

(b) any company formed or registered under the Companies Act, 1956 (1 of 1956).

(d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India.

(e) any co-operative society established by or under any law.

(f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder.

(g) any body corporate established, or a partnership firm registered, by or under any law.

Cenvat Credit

· The service receiver should pay tax by GAR-7 challan @ 3.09%. Then, he can avail Cenvat credit of tax so paid by him [Notification No. 1/2006-ST dated 1-3-2006].

Exemptions

·As per exemption notification No. 13/2008-ST dated 1-3-2008, actually service tax is payable on 25% of gross amount charged from customer by goods transport agency. Thus, service tax payable will be 3% plus 2% education cess plus 1% SAH education cess i.e. total 3.09%. Transport of fruits, vegetables, eggs or milk by road (as exempt under notification 33/2004-ST dated 3-12-2004)

·Gross Amount charged on consignments transported in a goods carriage does not exceed Rs. 1,500 (as exempt under clause (i) of notification No. 34/2004-ST dated 3-12-2004) [This is total of all consignments carried in a goods carriage at one time]

·Gross Amount charged on individual consignment transported in a goods carriage does not exceed Rs. 750 (as exempt under clause (ii) of notification No. 34/2004-ST dated 3-12-2004).

· See para 12.3 for general exemptions

Transport of goods in containers by rail

Statutory coverage

· Transport of goods in containers by rail

Exclusions

· Service provide by Government railway exempt.

Exemptions

Service tax is payable only on 30% of gross value charged, if Cenvat credit not availed - Notification No. 1/2006-ST, dated 1-3-2006.

See para 12.3 for general exemptions

Transport of goods (other than water) through pipeline or conduit

Statutory coverage

Transport of goods other than water, through pipeline or other conduit