Taxability of services

[NEERAJ KUMAR, RANCHI]

Dear sirs,

I have a query, if   any service becomes taxable or exemption is withdrawn  and  invoice  for the period prior to levy of service tax is  issued and payment is also received after levy of service tax, what will be the tax implication on such billing. Please note service has been provided prior to the date when it became taxable and invoice is issued after it became taxable also payment is made thereafter.

[YAGAY andSUN]

Please check the POTR in this regard.

[NEERAJ KUMAR, RANCHI]

Dear Sir,

In my opinion such situation has not been discussed in Point of Taxation Rules.

[YAGAY andSUN]

Dear Sir,

I know it is not mentioned in the POTR.  But POTR defines that at what point of time a particular transaction will be attracted to service tax and when the service tax will be payable.

It is settled legal position that If the service is not taxable even then, Invoice is raised and payment is made after it becomes taxable then such change in law would not make a non taxable service, taxable.

It was held in the NewQuest case that if  a particular service (procurement of goods and service which are input for client) under BAS is liable to tax w.e.f. 10-09-2004 then it cannot be held that prior to this date 10-09-2004 it will fall under another services.

For interpretion of the law it takes the study of combination of laws, judgments, notifications, circulars etc to dig the solutions to a particular query.

 

 

[NEERAJ KUMAR, RANCHI]

Thanks Mr Khatri, thanks a lot, I know that for interpretation of  law, study of combination of laws, judgments, notifications, circulars etc is necessary and you are very good at that.  

In the instant case your view is that  the service will not be taxable if it has been provided prior to levy of tax on it, however invoice was issued and payment was received when the said service became taxable. Did I understand you correctly.  If yes, can you please quote some authority in this regard.

[YAGAY andSUN]

Dear Sir,

For your kind information.

Rule 5 of Point of Taxation Rules, 2011 as amended, deals with payment of service tax for new taxable services. Where a service, not being a service covered by Rule 6 being continuous supply of service, is taxed for the first time, then no tax shall be payable to the extent the invoice has been issued and the payment received against such invoice before such service became taxable and no tax shall be payable if the payment has been received before the service becomes taxable and invoice has been issued within the period referred to in Rule 4A of the Service Tax Rules, 1994.

For such services, the contract between service provider and receiver will be important as the point of taxation is dependent on such agreement. In case of continuous supply of service and periodical billing (like weekly, monthly, half yearly etc.) by service provider, each period will be treated separately provided on the date the liability of payment arise. If contract provides different dates of payments on which service receiver is liable to pay, then such different dates shall constitute point of taxation. If before providing the service of fixing date of service, payment is received or invoice is issued, point of taxation will be the date of payment or date of invoice whichever is earlier. In case of reverse charge method under section 66A of the Finance Act, 1994, the date of receipt of invoice or date of making the payment will be the point of taxation. Where any advance is received for the continuous supply of service, the point of taxation will be date of receipt of such advance.

However, 1.4.2012, vide Notification No. 4/2012-ST, dated 17.3.2012, Rule 5 has been substituted to provide that where a service is taxed for the first time, then —

(a) no tax shall be payable to the extent the invoice has been issued and the payment received against such invoice before such service became taxable;

(b) no tax shall be payable if the payment has been received before the service becomes taxable and invoice has been issued within fourteen days of the date when the service is taxed for the first time.

Also, the CBEC has clarified that ‘the test for the determination whether a service has been completed would be the completion of all the ‘related’ activities that place the service provider in a situation to be able to issue an invoice’ and that however such activities do not include flimsy or irrelevant grounds for delay in issuance of invoice. (Circular No 144/13/2011- ST, dated 18.7.2011).

Rule 5 derives its statutory backing from section 94(2)(a) and section 94(2)(hhh) of the Finance Act, 1994, as amended. Readers may also refer to CCE v. Vazir Sultan Tobacco Co. Ltd. 1996 (2) TMI 138 - SUPREME COURT OF INDIA wherein it was held that excise duty is a levy on manufacture of excisable goods and as such, excise duty would be levied on goods if such goods were excisable at the time of manufacture.

Similarly, if any services were not subject to service tax at the time when they were 'provided' or 'agreed to be provided' then, no service tax can be levied thereon even if value thereof is realized after imposition of service tax.

Best Regards,

Pradeep Khatri

AI Summary

Point of Taxation determines taxability when services provided before levy but invoiced or paid after levy. Whether a service provided prior to levy but invoiced or paid after levy is taxable depends on the point of taxation. Rule 5 of the Point of Taxation Rules provides that invoices and payments made before a service becomes taxable are not subject to tax; for continuous supplies, contractual payment dates, advances, and periodic billing determine separate points of taxation, and reverse-charge supplies use invoice or payment dates. CBEC guidance limits what constitutes completion enabling invoicing.