AAR Kerala rules vehicle services as leasing without operator, not transfer of right to use goods, attracting 18% GST under Notification 11/2017.

The AAR Kerala ruled that the applicant's services constitute leasing or rental services without operator, not transfer of right to use goods. The Authority determined that effective control remained with the applicant as they required prior permission for vehicle usage locations, maintained overall control, handled repairs, and remained responsible for motor vehicle laws including third-party damage and insurance. Since substantial control was not transferred to users, the service falls under Sl. No. 17 (viii) of Notification No 11/2017 Central Tax Rate, attracting 18% GST.

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Issues Involved:

1. Classification of the services rendered by the applicant under the appropriate Service Accounting Code (SAC).
2. Determination of the applicable Goods and Services Tax (GST) rate for the services rendered by the applicant.

Issue-wise Detailed Analysis:

1. Classification of Services:

The primary issue revolves around whether the services provided by the applicant fall under SAC 9966 or 9973. The applicant provides self-drive car rental services without operators. Initially, such services were classified under SAC 9966, which included rental services of transport vehicles with operators. However, post the amendment introduced by Notification No 20/2019 Central Tax (Rate), SAC 9966 was restricted to services with operators. Consequently, the applicant reclassified their services under SAC 9973, which pertains to leasing or rental services with or without operators. The Authority for Advance Ruling (AAR) confirmed that the services rendered by the applicant indeed fall under SAC 9973, specifically under service code 997311, which covers leasing or rental services without operators.

2. Applicable GST Rate:

The second issue involves determining the applicable GST rate for the services under consideration. The applicant sought clarification on whether their services fall under Sl. No. 17 (iii) or 17 (viii) of Notification No 11/2017-Central Tax (Rate) as amended. Sl. No. 17 (iii) pertains to the "Transfer of the right to use any goods," which is akin to a sale, whereas Sl. No. 17 (viii) pertains to "Leasing or rental services, without operator," with an 18% tax rate.

The AAR analyzed whether the service of renting cars without operators constitutes a "Transfer of the right to use" or merely "leasing or rental" of the cars. The distinction is significant as it affects the applicable tax rate. The AAR referred to the legal precedent set by the Supreme Court in BSNL v. Union of India, which outlined five conditions necessary for a transaction to be considered a "Transfer of the right to use." These conditions include the availability of goods for delivery, consensus on the identity of the goods, legal right to use the goods, exclusivity of possession, and non-transferability of the same rights to others.

Upon examining the applicant's service agreement, the AAR found that the applicant retained substantial control over the vehicles. The applicant was responsible for insurance, repairs, and compliance with motor vehicle laws. The vehicles were monitored by the applicant, and the users had limited rights, restricted to personal use. Therefore, the transaction did not satisfy the conditions for a "Transfer of the right to use," as substantial control remained with the applicant.

Consequently, the AAR ruled that the services provided by the applicant fall under Sl. No. 17 (viii) of Notification No 11/2017-Central Tax (Rate), attracting a GST rate of 18% (9% CGST and 9% SGST).

Conclusion:

The AAR concluded that the services rendered by the applicant are classified under SAC 9973, service code 997311, and the applicable GST rate is 18%, as per Sl. No. 17 (viii) of Notification No 11/2017-Central Tax (Rate) as amended. The applicant's services do not constitute a "Transfer of the right to use" but are categorized as "leasing or rental services, without operator."

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