Service Provider
Service tax is levied on taxable services only and not on the service provider. The service provider is only an instrument to deposit the service tax to the credit of Central Government who has been made as a person liable. As per Section 68, every person providing taxable services to any person or persons notified under sub-section (2) shall pay service tax. The terms 'service provider' has not been defined.
Various definitions suggest that service provider is bound to have different meanings for different taxable services. The definitions use the words like any person, any commercial concern, any agency, any establishment etc. as is illustrated in some of the services mentioned below-
• Any person - air travel agent, architect, CA, CS, mandap keeper,
C & F agent, courier, broker, tour operator, cargo, cable operator etc.
• Any commercial concern - advertising, aircraft operator, business auxiliary services, manpower recruitment, drycleaner, convention etc.
• Any agency - broadcasting, commissioning & installation, manpower recruitment etc.
• Any establishment - beauty parlour, coaching centre
• Others - banking company, port, AAI, financial institution, body corporate etc.
• New services - the term used is 'any person' in all services.
Now, all service provided in taxable services are defined to be any person.
In Magus Construction Pvt Ltd. v Union of India (2008) TMI 4479 (Gauhati High Court), court ruled that service tax is levied on taxable service only and not on service provider. He (service provider) is only a means for depositing service tax to the credit of the Central Government. Services provider provider service to the service receiver.
Service Receiver
Service receiver is a person who receives or avail the service provided by the service provider. Service receiver has also not been defined and for service receiver, various terms have been used such as - any person, policy holder, subscriber, customer, client, exhibitor, franchisee, shipping line etc. However, Finance Act, 2008 has substituted 'any person' in all the taxable services in place of client or customer as service tax is levied on services and status of service recipient should not determine the tax treatment.
Service tax is payable only when a taxable service is rendered or provided to the service receiver. While generally, in case of sale, receiver is the buyer or customer, in case of a service, service receiver is the client. There should exist a relationship of service provider and service receiver between the two parties to a service. Services are rendered to the client who can be called a policy holder (as defined in Insurance laws) or a subscriber (as defined in Telegraph Laws) or shipping line or franchisee or a customer or just a client, as the case may be. Oxford English Dictionary defines client to mean a person or organisation using the services of a lawyer or other professional person or company. Clients collectively are clientele.
Black Law Dictionary defines client to mean an individual corporation, trust or estate that employs a professional to advice or assist it professionals line of work.
In Magus Construction Pvt Ltd. v Union of India (2008) TMI 4479 (Gauhati High Court), court held that although the term 'service receiver' has not been defined in the Finance Act 1994, the ' service receiver' is a person who receiver or avails the services provided by a 'service provider'
A service provider can not be a client to himself. There must exist a commercial relationship between the two i.e., service provider must charge to the client and client should pay for the services received. Client is an external person who avails the services of another person for an agreed consideration. As per amendment made by Finance Act, 2008, in definitions, whenever 'customer' was appearing, has been replaced by the words 'any person'.
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