2021 (1) TMI 426 - AAR - GST

Court clarifies service tax exemption criteria for government entities' hire charges

The court ruled that the services provided by the applicant did not fall under the scope of clause 5(f) of Schedule II to the Central Goods and Service ... Service of providing/supplying Temporary live videography with LED & LCD Screen, Live Telecast equipment, Cameras, etc. - Service related to collection of Hire Charges for temporary transfer of right to use goods from “Central Govt., State Govt. or Union Territory or Local Authority or a Government Authority by way of any activity in relation to any Function entrusted to a Panchayat under Article 243-G of the Constitution or in relation to any function entrusted to a Municipality under Article 243-W of the Constitution” - exemption under clause 5 (f) of the Schedule II to the Central Goods and Service Tax Act, 2017. Whether services provided by the applicant would fall under the scope of clause 5 (f) of the Schedule II to the Central Goods and Service Tax Act, 2017? - HELD THAT:- As per clause 5 (f) of the Schedule-II to the CGST Act, 2017, “transfer of the right to use any goods, for any purpose (whether or not for a specified period), for cash, deferred payment or other valuable consideration”, shall be treated as ‘Supply of services’ - In the applicant case, none of the work orders cited above fulfil any of the condition mentioned above, in as much the applicant’s activity does not involve the sale of goods but it involves supply of services of live telecast, videography etc. by using their own instruments/equipment’s viz. LED & LCD Screen, Live Telecast equipment, Cameras, etc., at site for various events undertaken by them and after completion of the specific event, all the instruments/ equipment, which are deployed at site, are taken back by them and use for other event. The applicant during the course of supply might also transfer some goods/ undertake the construction activity, for which he recovers consideration for the same as hiring charges from them. Thus, said services are to be construed as supply of services/ goods/ works contract depending upon the nature of contract entered by them or Work Order received by them. Thus, the services provided by the applicant would not fall under the scope of clause 5 (f) of the Schedule II to the Central Goods and Service Tax Act, 2017. Whether or not, the Service related to collection of Hire Charges for temporary transfer of right to use goods from “Central Govt., State Govt. or Union Territory or Local Authority or a Government Authority by way of any activity in relation to any Function entrusted to a Panchayat under Article 243-G of the Constitution or in relation to any function entrusted to a Municipality under Article 243-W of the Constitution” are covered and exempted under the scope of Sr. No. 3 of the Notification No.12/2017 Central Tax (Rate) dated 28.06.2017? - HELD THAT:- The scope of work as defined in the Work Orders submitted by the applicant on sample basis do not get covered under any such activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution of India or in relation to any function entrusted to a Municipality under Article 243W of the Constitution of India. Since the applicant, at various stages, enters into different agreements with various authorities for provision of services, it is not practical to examine at this stage, each contract, he has entered into with the recipients of services. Further, during the course of providing services, the applicant may also enter into further agreements with the service recipients. It is not possible to foresee the nature of all these agreements at present. Further, there could also be modifications/ amendments in the existing agreements and the nature of service could be subsequently altered. Therefore, the reply to the query raised by the applicant cannot be answered in plain ‘no’ or ‘yes’. Thus, the nature of these agreements and the services provided by the applicant would determine whether the third condition as discussed above has been met or otherwise. The applicant shall be eligible for the exemption under the Notification No.12/2017-State Tax (Rate) dated 28.06.2017 only if all the conditions as specified are met in respect of supply of such services. Therefore, the exemption sought by the applicant will depend upon the nature of services provided by them in terms of specific contracts entered by them with respective service recipients - answered in negative. Issues Involved:1. Whether the services provided fall under the scope of clause 5(f) of Schedule II to the Central Goods and Service Tax Act, 2017.2. Whether the services related to the collection of hire charges for temporary transfer of the right to use goods from government entities are exempt under Sr. No. 3 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017.Issue-wise Detailed Analysis:Issue 1: Applicability of Clause 5(f) of Schedule II to CGST Act, 2017The applicant argued that their services fall under clause 5(f) of Schedule II to the CGST Act, 2017, which treats the transfer of the right to use goods for any purpose as a supply of services. The applicant provides temporary live videography and related equipment to various government entities, taking back the equipment post-event, implying no transfer of ownership.The judgment concluded that the applicant's activities do not meet the conditions for a transfer of the right to use goods, as outlined in sub-clause (d) of clause (29A) of Article 366 of the Constitution of India. These conditions include the availability of goods for delivery, consensus on the identity of goods, legal right to use the goods by the transferee, exclusive use by the transferee, and non-transferability of the same right to others by the owner. The applicant's activities involve the use of their equipment for services like live telecast and videography, which are taken back after the event. Therefore, the services provided by the applicant do not fall under the scope of clause 5(f) of Schedule II to the CGST Act, 2017.Issue 2: Exemption under Sr. No. 3 of Notification No.12/2017-Central Tax (Rate)The applicant contended that their services qualify as 'pure services' and are exempt under Sr. No. 3 of Notification No.12/2017-Central Tax (Rate), which exempts pure services provided to government entities in relation to functions entrusted to a Panchayat under Article 243-G or a Municipality under Article 243-W of the Constitution.The judgment examined three conditions for this exemption:1. The service must be a pure service not involving any supply of goods.2. The service must be provided to government entities.3. The service must relate to functions entrusted to Panchayats or Municipalities under the respective Articles of the Constitution.The judgment found that some work orders involved the supply of goods, not just pure services. The applicant did not provide sufficient evidence to prove that all work orders were purely service-based without involving goods. Moreover, the applicant did not substantiate that the entities they served met the criteria of 'Central Government,' 'State Government,' 'Local Authority,' 'Governmental Authority,' or 'Government Entity' as defined under the CGST Act, 2017.Regarding the third condition, the judgment noted that the scope of work defined in the work orders did not clearly fall under any function entrusted to Panchayats or Municipalities under Articles 243-G or 243-W. The judgment emphasized that the nature of agreements and services provided by the applicant would determine eligibility for the exemption. Therefore, the exemption sought by the applicant depends on the specific contracts and services provided.Conclusion:Ruling:1. The services provided by the applicant do not fall under the scope of clause 5(f) of Schedule II to the CGST Act, 2017.2. The services related to the collection of hire charges for temporary transfer of the right to use goods from government entities are not exempt under Sr. No. 3 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017.