Export of Service

[Shyam Naik]

A Ltd is in the business of software development. B Ltd is 100% subsidiary of A Ltd and is located outside India.

B Ltd received orders for software development from customers outside India and in turn places orders on A Ltd.

A Ltd supplies the software to B Ltd and receives payment for the same from B Ltd.

Whether, the development and supply of software by A Ltd to B Ltd if 'Export of Service'? Is the relationship of Holding and Subsidiary is covered by explanation 3 to section 65B(44).

Regards,

Shyam

[YAGAY andSUN]

In our view, it may come under the purview of explanation 3 to section 65B(44) read with Rule 6A of the Service Tax Rules.

[Rajagopalan Ranganathan]

Sir,

B, 100% subsidiary of A is incorporated as per law prevailing at the location of B. B is located in non-taxable territory. Hence it cannot be treated as a branch of A. Therefore supply of software by A to B is treatable as export and therefore is exempted from service tax. This is my opinion.

[Shyam Naik]

Agreed with the view of Shri Rajagopalan. Had the intention of legislature been to deny export status to transaction between Holding & subsidiary, legislature would have used the term "Associated Enterprise" in place of the term "Establishment" in Rule 6A.

[Ganeshan Kalyani]

As per place of provision of service rule, the place of provision of service is the place of recipient of the service. Since B is recipient which is in non-taxable territory then sec 66B will not be applicable. It is export of service and no service tax is applicable.

[KASTURI SETHI]

Undoubtedly, it is export of service and exempted from Service Tax. After going through Explanation 3 to Section 65 B(44) and Rule 6 A of Service Tax Rules I want to express as under :-

1. Sh.Rajagopalan Ranganathan in his reply dated 6.12.2015 has supported the views of M/S.YAGAY and SUN in toto directly or indirectly. Am I right ? I want comments from M/s.YAGAY and SUN, Sh.Ranganathan Ji and Sh.Ganeshan Kalyani Ji.

2. On this issue Board's Circulars Nos. 111/5/2009-ST dated 24.2.2009 and 141/10/2011-TRU dated 13.5.2011 (still in force) are also relevant . These emphasize, inter alia, place of enjoyment/performance of service. In new version, it is 'Place of Provision of Service Rules'.

3. No doubt this service is covered by Place of Provision of Service Rules (Rule 4) but it is also to be read with Rule 6 A (1) of Service Tax Rules because conditions laid down therein are also to be fulfilled.And Rule 6 A(1) (f) also talks of Explanation 3 of clause (44) of Section 65 B of the Act.

4. Place of Provision of Service Rules are always to be read in conjunction with Rule 6A (Export of Service) of Service Tax Rules. That is why above mentioned Board's circulars have not been withdrawn even after 1.7.2012.

5. Condition under Rule (f) to Rule 6 A (1) has also to be taken care of for determining Export of Service.

[DR.MARIAPPAN GOVINDARAJAN]

In my view also it is export of service and not liable to service tax.

[Rajagopalan Ranganathan]

Dear Kasturi sir,

I agree with the views expressed by YAGAY AND SUN. But I have put it in different words.

[Ganeshan Kalyani]

Yes sir the service is export of service.

AI Summary

Export of Service: supplying software to a foreign subsidiary is export when place-of-provision and export-rule conditions are satisfied. Whether cross-border software supplied by a domestic company to its wholly owned foreign subsidiary is an export of service depends on the place-of-provision rule locating the recipient in a non-taxable territory and on meeting the export-rule conditions distinguishing a foreign establishment from a domestic branch.