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Manuals Service Tax
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SCN requirement: absence of a show-cause notice prevents imposition of service tax and interest under revision.
Issuance of a show-cause notice under the demand provision is a prerequisite to fix service tax and interest; where only a penalty notice was issued under the penalty regime, the revisional authority cannot validly pass an order demanding service tax with interest because the penalty notice cannot substitute for a demand-stage show-cause notice.
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Right to be heard required before finalising provisional assessment; taxpayer must be told grounds and allowed to respond.
An assessing authority must inform the taxpayer of the specific grounds for proposed enhanced liability and afford a meaningful opportunity to meet those grounds before finalising a provisional assessment, as a baseline requirement of natural justice in assessment proceedings.
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Provisional assessment appeals permitted where statute and rules authorize provisional determinations, allowing aggrieved parties to prefer appeals.
Provisional assessments are authorized by the Act and Rules, and an aggrieved party retains the right to appeal against such provisional assessments; the provisional nature does not by itself preclude preferring appeals under the applicable appellate procedure.
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Non-filing of memorandum for provisional assessment is a procedural omission and does not negate provisional assessment.
Non filing of the memorandum in Form ST 3A does not by itself negate the existence of a provisional assessment; the form serves to supply date wise details to enable the proper officer to make an accurate final assessment, and omission of that statement does not preclude that assessments were provisional, especially where the taxpayer later requests and the proper officer completes a final assessment.
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Best judgment assessment must be reasoned, not arbitrary; it requires material support and more than mere guesswork.
A best-judgement assessment allows limited estimation but the assessing officer must make an honest, fair and reasoned estimate and cannot act wholly arbitrarily; technical rules of evidence are relaxed but the assessment must be based on more than mere suspicion or pure guesswork and should be supported by adequate material rather than unsupported conjecture.
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Best judgment assessment: courts may not substitute their own estimate if the assessing authority's basis has reasonable nexus.
Assessment based on accounts is proper where books are genuine and substantially correct, with only minor adjustments; a best judgment assessment is used when accounts are unreliable and the authority estimates liability using available accounts, other information and surrounding circumstances. Courts reviewing a best judgment assessment must first confirm that rejection of accounts was justified and then assess whether the estimating basis has a reasonable nexus to the estimated turnover; if so, the authority's bona fide estimate should not be displaced.
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Assessment in service tax: scope includes self assessment, reassessment, provisional and best judgement modes and interest determination.
Assessment for service tax includes self-assessment, reassessment, provisional assessment, best judgement assessment and any order where tax assessed is nil; it also includes determination of interest on assessed or reassessed tax. "Assessee" means a person liable to pay the tax and includes the person's agent.
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Untrue self-declaration in tax return corroborates suppression and can trigger penalty under self-assessment procedures.
An untrue declaration in a service tax return asserting that tax has been paid corroborates suppression and attracts penalty; absence of a bona fide statement on the return or with the return renders the declaration faulty and imputes liability under the self-assessment procedure.
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Electronic preservation of records permitted subject to every page being authenticated by digital signature and prescribed safeguards.
Preservation of records in electronic form is permitted provided each page of the record is authenticated by a digital signature, and the Board may prescribe further conditions, safeguards and procedures for maintaining digitally signed records.
Manuals Service Tax
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Partial reverse charge: provider exempt under SSI does not pay; service receiver still liable for receiver's portion of tax.
Where a service falls under partial reverse charge and the provider is covered by the SSI exemption and not liable to pay service tax, the provider's obligation to pay its share is eliminated while the service receiver remains independently liable to pay the receiver's portion under the reverse charge mechanism.
Manuals Service Tax
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Reverse charge liability now places full service tax responsibility on the service recipient for manpower and security services.
W.e.f. notification no. 07/2015-ST the services by way of supply of manpower for any purpose and security services have been placed under a full reverse charge mechanism, making the service recipient exclusively liable to discharge the entire service tax; the earlier partial reverse charge split between recipient and service provider has been removed.
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Partial reverse charge: service tax liability split between provider and recipient; third-party payers allowed under notification
A scheme of partial reverse charge allocates service tax between provider and recipient by notifying services and the share payable by the recipient, the provider paying the remainder. As at 01/04/2015 the notification covers renting of passenger motor vehicles to persons not in the same business and the service portion of works contracts. The framework also allows liability to be placed on persons other than provider or recipient, for example a representative of an aggregator, where so notified.
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Aggregator liability: platform owners bear service tax responsibility, with representatives appointed if no taxable territory presence.
An "aggregator" is the owner manager of a web based application enabling customers to connect with service providers under the aggregator's brand; the aggregator is the person liable for paying service tax for services involving the aggregator. If the aggregator lacks physical presence in the taxable territory, a person representing the aggregator in that territory is liable; if there is neither presence nor representative, the aggregator must appoint a person in the territory who will be liable to pay service tax.
Manuals Service Tax
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Aggregate value rule: combined turnover across services and premises determines small service provider exemption; co-owners assessed individually.
Exemption is applied to the aggregate value of all taxable services provided from all premises by a provider, and eligibility is determined by aggregating previous year turnover across all premises; where premises are co-owned, each co-owner may claim the exemption separately if, on individual assessment, their aggregate taxable services fall within the threshold.
Manuals Service Tax
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Reverse charge excludes recipients from small service provider exemption when they are liable to pay service tax.
The Small service provider exemption does not extend to persons liable to pay service tax as service recipients under the Reverse Charge Mechanism; values of taxable services for which tax is payable by such person under sub-section (2) of section 68 read with the Service Tax Rules are excluded from the notification's exemption.
Manuals Service Tax
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Option to decline small-provider exemption allows service providers to pay service tax and claim CENVAT credit from that date.
Service providers may elect during a financial year to forego the small-provider value-based exemption and pay service tax, but the election is irrevocable for that financial year. Upon electing to pay service tax, the provider may avail CENVAT credit only for inputs or input services received on or after the date service tax payments commence and used for taxable services for which service tax is payable.
Manuals Service Tax
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Brand name usage and service tax exemption: services under own brand remain eligible; exclusion covers use of another's brand.
Exemption for small service providers applies when services are provided under the provider's own brand name or trade name; the notification excludes only taxable services provided under a brand or trade name of another person, whether registered or not.
Manuals Service Tax
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Deemed registration applies when the local superintendent delays issuance, but not to centralized registration by the Commissioner.
Failure of the Superintendent of Central Excise to issue Form ST-2 within seven days triggers deemed registration; that deeming provision applies only to registrations by the Superintendent and not to centralized registrations granted by the Commissioner, where no statutory time limit exists. Registration must nevertheless be granted within a reasonable time, and administrative circulars treating seven days as reasonable impose directory guidance and accountability but do not create deemed registration for the Commissioner.
Manuals Service Tax
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Registration refusal prohibited: complete service tax applications must be accepted and authorities cannot register suo moto.
A complete and properly filled application in Form ST-1 and/or ST-2 must be accepted; there is no statutory power under the Finance Act, 1994 or the Service Tax Rules, 1994 for the Superintendent or the Commissioner to refuse registration, nor to grant registration suo moto. Registration is confined to the category specified in the application, and non-alignment with the correct category may attract recovery or penal proceedings.
Manuals Service Tax
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Surrender of service tax registration required on cessation of taxable services; cancellation follows after dues are cleared and documents submitted.
Surrender of the registration certificate is mandatory upon cessation of taxable services and must be submitted to the Superintendent, who ensures all dues are paid before cancelling registration. No prescribed format exists; a simple application is acceptable. A trade notice lists common reasons for surrender and requires an application and undertaking, copies of recent ST-3 returns (up to six), profit & loss accounts and balance sheets (up to three years) or income tax returns or bank statements if unavailable, and disclosure of pending show-cause notices, confirmed demands, court cases and audits; waiver of penalty may be applied where returns were not filed but turnover is below the exemption limit.

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Comparison of Section 28 "Rent, rates, taxes, repairs and insurance" between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

21 August, 2025

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Section 28 Rent, rates, taxes, repairs and insurance.

Income-tax Act, 2025 [As Passed]

At a Glance

Document considered: Clause 28 of the Income Tax Bill, 2025 (Old Version) titled "Rent, rates, taxes, repairs and insurance." It sets out categories of deductible expenditures in computing profits and gains of business or profession. It matters to taxpayers carrying on business or profession, lessors/tenants and tax authorities. Effective date or decision date: Not stated in the document.

Background & Scope

Statutory hook: Clause 28 of the Income Tax Bill, 2025 dealing with "Profits and gains of business or profession." Scope: provides that specified amounts shall be allowed as deduction in respect of premises, machinery, plant or furniture "wholly and exclusively" used for business or profession. The clause enumerates categories (insurance premium, land revenue/local rates/municipal taxes, rent when tenant, current repairs when occupied otherwise than as a tenant, and cost of repairs when premises occupied by the assessee as a tenant). Definitions or further explanations: Not stated in the document.

Statutory Provision Mode

Text & Scope

The provision covers deductions in computing business/professional profits for expenses in respect of premises, machinery, plant or furniture that are "wholly and exclusively" used for business/profession. Enumerated deductible items are:

  • (a) any premium paid in respect of insurance against risk of damage or destruction of the assets;
  • (b) land revenue, local rates or municipal taxes paid;
  • (c) rent paid where the premises are occupied by the assessee as a tenant;
  • (d) amount paid on account of current repairs, not being capital expenditure, when premises are occupied otherwise than as a tenant;
  • (e) cost of repairs, not being capital expenditure, when the premises are occupied by the assessee as a tenant.

Subsection (2) provides that where the asset is partly used or not wholly and exclusively used for business/profession, deduction under subsection (1) shall be restricted to a fair proportionate part as determined by the Assessing Officer, having regard to usage for business/profession.

Interpretation

The text conditions deductions on assets being "wholly and exclusively" used for business/profession; that phrase operates as a threshold requirement. The enumeration is restrictive: only specified categories qualify. The use of the phrase "not being capital expenditure" signals an intention to exclude capital improvements from deduction, limiting allowance to current/repair-type expenditure. The mechanism in subsection (2) entrusts apportionment to the Assessing Officer, implying case-by-case factual determination of proportionate business use.

Exceptions/Provisos

No express provisos, thresholds, or procedural conditions appear in Clause 28 beyond the "wholly and exclusively" condition and the exclusion of capital expenditure. Specific exceptions (e.g., measuring apportionment methods, documentation requirements) are Not stated in the document.

Illustrations

  • Example 1: A manufacturing firm uses a factory building solely for manufacturing; premium paid for insurance on the building would be deductible under clause (a) because the premises are wholly and exclusively used for business.
  • Example 2: A proprietor runs a business from part of a building and uses part for private residence. Only a fair proportionate part of municipal taxes and repairs, as determined by the Assessing Officer, would be deductible under subsection (2).
  • Example 3: A tenant pays rent for business premises; rent paid is deductible under clause (c) provided the premises are wholly and exclusively used for business.

Interplay

Interaction with other statutory provisions, Rules, Notifications or Circulars is Not stated in the document. The clause's reference to determination by the Assessing Officer suggests interaction with assessment procedures under the Income-tax Code, but specific cross-references are Not stated in the document.

Differences between Section 28 of Income-tax Act, 2025 [As Passed] and Clause 28 of Income Tax Bill, 2025 - Old Version

  • Scope of use: The Old Version (Clause 28) conditions deductions on premises, machinery, plant or furniture being "wholly and exclusively" used for the purposes of business or profession. The Passed Act (Section 28) omits "wholly and exclusively" and allows deductions in respect of such assets "used for the purposes of the business or profession," thereby broadening applicability.
  • Repairs to machinery/plant/furniture: The Passed Act adds a new sub-clause (f) expressly permitting deduction for "current repairs to machinery, plant or furniture, not being in the nature of capital expenditure." The Old Version contains no equivalent clause.
  • Tenant repairs: The Old Version's clause (e) refers to "cost of repairs, not being capital expenditure, when the premises occupied by the premises occupied by the assessee as a tenant" (contains a drafting repetition). The Passed Act's clause (e) clarifies that the deduction applies where the premises are occupied by the assessee as a tenant and "where he has undertaken to bear the cost of repairs to the premises." Thus the Passed Act adds an explicit requirement that the tenant has undertaken responsibility for repairs.
  • Wording on capital expenditure: The Old Version uses the phrase "not being capital expenditure"; the Passed Act uses "not being in the nature of capital expenditure." This is a drafting refinement but may have interpretive significance.
  • Assessing Officer determination: Both versions retain subsection (2) restricting deduction to a fair proportionate part where assets are partly used or not wholly and exclusively used; text is substantially the same though the Old Version's trigger language references "wholly and exclusively" use while the Passed Act's trigger is broader given the removal of that phrase in subsection (1).
  • Minor drafting: The Old Version appears to contain a typographical repetition in clause (e). The Passed Act corrects and expands the drafting.

Practical impact of each change

  • Removal of "wholly and exclusively": Broadens entitlement to deductions where assets are partly used for business/profession - potentially increasing allowable deductions but subject to apportionment under subsection (2).
  • Addition of repairs to plant/machinery/furniture: Clarifies and expressly allows current repair deductions for tangible assets beyond premises - likely reduces disputes where such repairs were previously not expressly listed.
  • Tenant repair undertaking requirement: Tightens the conditions for a tenant's deduction for repairs by requiring an undertaking to bear repair costs - may limit deductions where no express undertaking exists.
  • Drafting refinement ("in the nature of"): May affect interpretation in borderline cases by focusing on the character of expenditure, rather than the technical label "capital expenditure."
  • Subsection (2) retained: Apportionment by the Assessing Officer remains the mechanism to deal with mixed-use assets; practical disputes may shift from entitlement to apportionment methodology.

Practical Implications

  • Compliance and risk areas: Taxpayers must establish that assets are "wholly and exclusively" used for business or profession to claim full deductions. Where use is mixed, subsection (2) exposes taxpayers to assessment-time apportionment. The exclusion of capital expenditure demands careful classification of spending as current repair versus capital improvement to avoid disallowance.
  • Record-keeping/evidence points: Although the clause does not prescribe records, the textual requirements imply that taxpayers should retain evidence of exclusive business use (floor plans, usage logs), invoices and nature-of-expenditure documentation to substantiate repairs as current (versus capital). Where a tenant seeks deduction for repairs, documentation of tenancy terms and any undertaking to bear repairs is likely to be material-however, the Bill does not state precise documentary requirements.

Key Takeaways

  • Clause 28 enumerates limited categories of deductible expenses relating to premises, machinery, plant and furniture for business/profession.
  • Full deduction in the Old Version is conditioned on assets being "wholly and exclusively" used for business or profession.
  • Capital expenditure is excluded; only current repairs or recurring costs qualify under the repair heads.
  • Subsection (2) permits apportionment for mixed-use assets by the Assessing Officer on a fair proportionate basis.
  • The Bill does not set out procedural, evidentiary or measurement standards; those are Not stated in the document.
  • Ambiguities likely to arise concern classification of expenditure (current v. capital), proving "wholly and exclusively" use, and apportionment methodology.
  • Specific operational details (effective date, transitional rules, forms or rulings) are Not stated in the document.

Full Text:

Section 28 Rent, rates, taxes, repairs and insurance.

Topics

Acts Income Tax