Thursday, April 19, 2012
Friday, March 23, 2012
Negative List of 17 sweet Services:Budget 2012
In the existing system, only the services specified in clause (105) of section 65 of the Finance Act, 1994 are taxed under the charging section 66. In the new system, all services, other than services specified in the negative list, provided or agreed to be provided in the taxable territory by a person to another would be taxed under section 66B. (effective date yet not notified )
Service’ has been defined in clause (44) of the new section 65B and means –
any activity
for consideration
carried out by a person for another
and includes a declared service.
The said definition further provides that ‘Service’ does not include –
any activity that constitutes only a transfer in title of (i) goods or (ii) immovable property by way of sale, gift or in any other manner
a transaction only in (iii) money or (iv) actionable claim
any service provided by an employee to an employer in the course of the employment.
fees payable to a court or a tribunal set up under a law for the time being in force
In terms of Section 66B of the Act, service tax will be leviable on all services provided in the taxable territory by a person to another for a consideration other than the services specified in the negative list. The services specified in the negative list therefore go out of the ambit of chargeability of service tax. The negative list of service is specified in the Act itself in Section 66 D. For sake of ease of reference the negative list of services is given in Exhibit A1. In all, there are seventeen heads of services that have been specified in the negative list. The scope and ambit of these is explained in paras below
Negative List of Services not liable for service tax :Union budget 2012
Services by Government or a local authority excluding the following services to the extent they are not covered elsewhere:(i) services by the Department of Posts by way of speed post, express parcel post, life insurance and agency services provided to a person other than Government;(ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport;(iii) transport of goods or passengers; or(iv) support services, other than services covered under clauses (i) to (iii) above, provided to business entities.
Services by the Reserve Bank of India.
Services by a foreign diplomatic mission located in India.
Services relating to agriculture by way of –(i) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or seed testing;(ii) supply of farm labour;(iii) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter essential characteristics of agricultural produce but make it only marketable for the primary market;(iv) renting or leasing of agro machinery or vacant land with or without a structure incidental to its use;(v) loading, unloading, packing, storage or warehousing of agricultural produce;(vi) agricultural extension services;(vii) services by any Agricultural Produce Marketing Committee or Board or services provided by a commission agent for sale or purchase of agricultural produce.
Trading of goods.
Any process amounting to manufacture or production of goods.
Selling of space or time slots for advertisements other than advertisements broadcast by radio or television.
Service by way of access to a road or a bridge on payment of toll charges.
Betting, gambling or lottery.
Admission to entertainment events or access to amusement facilities.
Transmission or distribution of electricity by an electricity transmission or distribution utility.
Services by way of –(i) pre-school education and education up to higher secondary school or equivalent;(ii) education as a part of a curriculum for obtaining a qualification recognized by law;(iii) education as a part of an approved vocational education course.
Services by way of renting of residential dwelling for use as residence;
Services by way of –(i) extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount;(ii) inter-se sale or purchase of foreign currency amongst banks or authorized dealers of foreign exchange or amongst banks and such dealers;
Service of transportation of passengers, with or without accompanied belongings, by –(i) a stage carriage;(ii) railways in a class other than –(A) first class; or(B) an air conditioned coach;(iii) metro, monorail or tramway;(iv) inland waterways;(v) public transport in a vessel of less than fifteen tonne net, other than predominantly for tourism purpose; and(vi) metered cabs, radio taxis or auto rickshaws;
Services by way of transportation of goods –(i) by road except the services of –(A) a goods transportation agency; or(B) a courier agency;(ii) by an aircraft or a vessel from a place outside India to the first customs station of landing in India; or(iii) by inland waterways;
Funeral, burial, crematorium or mortuary services including transportation of the deceased.
Details of Negative List of services.
4.1 Services provided by Government or local authority
4.1.1 Are all services provided by Government or local authority covered in the negative list?
No. Most services provided by the Central or state Government or local authorities are in the negative list except the following:
a) services provided by the Department of Posts by way of speed post, express parcel post, life insurance and agency services carried out on payment of commission on non government business;
b) services in relation to a vessel or an aircraft inside or outside the precincts of a port or an airport;
c) transport of goods and/or passengers;
d) support services, other than those covered by clauses (a) to (c) above, to business entities.
4.1.2 Would the taxable services provided by the Government be charged to tax if they are otherwise exempt or specified elsewhere in the negative list?
No. If the services provided by the government or local authorities that have been excluded from the negative list entry are otherwise specified in the negative list then such services would also not be taxable.
4.1.3 ‘Government’ has not been defined in the Act. What is the meaning of Government?
Since ‘Government’ has not been defined in the Act, the definition of ‘Government’ as contained in the General Clauses Act, 1897 would be applicable as per which ‘Government’ includes both State Government and Central Government. Further as per the General Clause Act 1897, State includes Union Territory.
4.1.4 Are various corporations formed under Central Acts or State Acts or various government companies registered under the Companies Act, 1956 or autonomous institutions set up by a special Acts covered under the definition of ‘Government’?
No. In terms of the definition of ‘Government’ as contained in the General Clause Act, 1857 and as per the settled position of law such corporations or authorities or companies are not included in the definition of ‘Government’. Services provided by such entities would, therefore, not be entitled to the negative list entry relating to the ‘Government’. It would also not include regulatory bodies.
4.1.5 What entities are then covered under ‘Government’?
‘Government’ would include various departments and offices of the Central or State Government or the U.T. Administrations which carry out their functions in the name and by order of the President of India or the Governor of a State.
4.1.6 Would a department of the Government need to get itself registered for each of the services listed in answer to Q. No.4.1.1 above?
For the support services provided by the Government to business entities government departments will not have to get registered because service tax will be payable on such services by the service receiver i.e. the business entities receiving the service under reverse charge mechanism in terms of the provisions of section the Act and the notification proposed to be issued under the said section. For services mentioned at (a) to (c) of the list (point 4.1.1 above refers) tax will be payable by the concerned department.
4.1.7 What is the meaning of “support services” which appears to be a phrase of wide ambit?
Support services have been defined in section 65B of the Act as ‘infrastructural, operational, administrative, logistic marketing or any other support of any kind comprising functions that entities carry out in ordinary course of operations themselves but may obtain as services by outsourcing from others for any reason whatsoever and shall include advertisement and promotion, construction or works contract, renting of movable or immovable property, security, testing and analysis’. Thus services which are provided by government in terms of their sovereign right to business entities are not support services e.g. grant of mining or licensing rights.
4.1.8 What is the meaning of local authority?
Local authority is defined in 65B and means the following:-
A Panchayat as referred to in clause (d) of article 243 of the Constitution
A Municipality as referred to in clause (e) of article 243P of the Constitution
A Municipal Committee and a District Board, legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund
A Cantonment Board as defined in section 3 of the Cantonments Act, 2006
A regional council or a district council constituted under the Sixth Schedule to the Constitution
A development board constituted under article 371 of the Constitution, or
A regional council constituted under article 371A of the Constitution.
4.2 Services provided by Reserve Bank of India
4.2.1 Are all services provided by the Reserve Bank of India in the negative list?
Yes. All services provided by the Reserve Bank of India are in the negative list.
4.2.2 What about services provided to the Reserve Bank of India?
Services provided to the Reserve Bank of India are not in the negative list and would be taxable unless otherwise covered in any other entry in the negative list.
4.3 Services by a foreign diplomatic mission located in India
Any service that is provided by a diplomatic mission of any country located in India are in the negative list. This entry does not cover services, if any, provided by any office or establishment of an international organization.
4.4 Services relating to agriculture
The services relating to agriculture that are specified in the negative list are services relating to –
agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or seed testing;
supply of farm labour;
processes carried out at the agricultural farm including tending, pruning, cutting, harvesting, drying cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter essential characteristics of agricultural produce but makes it only marketable for the primary market;
renting of agro machinery or vacant land with or without a structure incidental to its use;
loading, unloading, packing, storage and warehousing of agricultural produce;
agricultural extension services;
services provided by any Agricultural Produce Marketing Committee or Board or services provided by commission agent for sale or purchase of agricultural produce;
4.4.1 What is the meaning of ‘agriculture’?
‘Agriculture’ has been defined in the Act as cultivation of plants and rearing or breeding of animals and other species of life forms for foods, fibre, fuel, raw materials or other similar products but does not include rearing of horses.
4.4.2 Are activities like breeding of fish (pisciculture), rearing of silk worms (sericulture), cultivation of ornamental flowers (floriculture) and horticulture, forestry included in the definition of agriculture?
Yes. These activities are included in the definition of agriculture.
4.4.3 What is the meaning of agricultural produce?
Agricultural produce has also been defined in section 65B of the Act which means any produce of agriculture on which either no processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market. It also includes specified processes in the definition like tending, pruning, grading, sorting etc. which may be carried out at the farm or elsewhere as long as they do not alter the essential characteristics.
4.4.4 Would plantation crops like rubber, tea or coffee be also covered under agricultural produce?
Yes. Such plantation crops are also covered under agricultural produce.
4.4.5 Would potato chips or tomato ketchup qualify as agricultural produce?
No. In terms of the definition of agricultural produce, only such processing should be carried out as is usually done by cultivator producers which does not alter its essential characteristics but makes it marketable for primary market. Potato chips of tomato ketchup are manufactured through processes which alter the essential characteristic of farm produce (potatoes and tomatoes in this case).
4.4.6 Would leasing of vacant land with a green house or a storage shed meant for agricultural produce be covered in the negative list?
Yes. In terms of the specified services relating to agriculture ‘leasing’ of vacant land with or without structure incidental to its use’ is covered in the negative list. Therefore, if vacant land has a structure like storage shed or a green house built on it which is incidental to its use for agriculture then its lease would be covered under the negative list entry.
4.4.7 What is the meaning of agricultural extension services?
Agricultural extension services have also been defined in section 65B of the Act as application of scientific research and knowledge to agricultural practices through farmer education or training.
4.4.8 What are the services referred to in the negative list entry pertaining to Agricultural Produce Marketing Committee or Board?
Agricultural Produce Marketing Committees or Boards are set up under a State Law for purpose of regulating the marketing of agricultural produce. Such marketing committees or boards have been set up in most of the States and provide a variety of support services for facilitating the marketing of agricultural produce by provision of facilities and amenities like shops, sheds, water, light, electricity, grading facilities etc. They also take measures for prevention of sale or purchase of agricultural produce below the minimum support price. APMCs collect market fees, license fees, rents etc. Services provided by such Agricultural Produce Marketing Committee or Board are covered in the negative list.
4.5 Trading of goods
4.5.1 Would activities of a commission agent or a clearing and forwarding agent who sells goods on behalf of another for a commission be included in trading of goods?
No. The services provided by commission agent or a clearing and forwarding agent are not in the nature of trading of goods. These are auxiliary for trading of goods. In terms of the provision of clause (1) of section 66F reference to service does not include reference to a service used for providing such service.(For guidance on clause (1) of section 66F please refer to point no 7.1.1 of this Guidance Paper) Moreover the title in the goods never passes on to such agents to come within the ambit of trading of goods.
4.5.2 Would future contracts in commodities be covered under trading of goods?
Yes. Futures contracts would be covered under trading of goods as these are contracts which involve transfer of title in goods on a future date at a pre-determined price.
4.5.3 Would commodity futures be covered under trading of goods?
Yes. In commodity futures actual delivery of goods does not normally take place and the purchaser under a futures contract normally offsets all obligations or closes out by selling an equal quantity of goods of the same description under another contract for delivery on the same date. There are, therefore, two contracts of sale/purchase involved which would fall in the category of trading of goods.
4.5.4 Would auxiliary services relating to future contracts or commodity futures be covered in the negative list entry relating to trading of goods?
No. Such services provided by commodity exchanges clearing houses or agents would not be covered in the negative list entry relating to trading of goods.
4.6 Processes amounting to manufacture or production of goods
The phrase ‘processes amounting to manufacture or production of goods’ has been defined in section 65B of the Act as a process on which duties of excise are leviable under section 3 of the Central Excise Act, 1944 (1 of 1944) or any process amounting to manufacture of alcoholic liquors for human consumption, opium, Indian hemp and other narcotic drugs and narcotics on which duties of excise are leviable under any State Act. This entry, therefore, covers manufacturing activity carried out on contract or job work basis provided duties of excise are leviable on such processes under the Central Excise Act, 1944 or any of the State Acts.
4.6.1 Would service tax be leviable on processes which do not amount to manufacture or production of goods?
Yes. Service tax would be levied on processes, unless otherwise specified in the negative list, not amounting to manufacture or production of goods carried out by a person for another for consideration. Some of such services relating to processes not amounting to manufacture are exempt as specified in entry no. 30 of Exhibit A2.
4.6.2 Would service tax be leviable on processes on which Central Excise Duty is leviable under the Central Excise Act, 1944 but are otherwise exempted?
No. If Central Excise duty is leviable on a particular process as the same amounts to manufacture then such process would be covered in the negative list even if there is a central excise duty exemption for such process.
4.7 Selling of space or time slots for advertisements other than advertisements broadcast by radio or television
‘Advertisement’ has been defined in section 65 B of the Act as form of presentation for promotion of, or bringing awareness about, any event, idea, immovable property, person, service, goods or actionable claim through newspaper, television, radio or any other means but does not include any presentation made in person.
4.7.1 Sale of space of time for advertisements not including sale of space for advertisement in print media and sale of time by a broadcasting agency or organization is currently taxed under clause (zzzm) of sub-section (105) of the Finance Act,1944. So what kind of sale of space or time would become taxable and what would be not taxable?
Taxable
Non-taxable
Sale of space or time for advertisement
to be broadcast on radio or television
Sale of space for advertisement in print
media
Sale of time slot by a broadcasting
organization.
Sale of space for advertisement in bill
boards, public places, buildings, conveyances, cell phones, automated teller machines, internet
Aerial advertising
4.7.2 Would services provided by advertisement agencies relating to preparation of advertisements be covered in the negative list entry relating to sale of space for advertisements?
No. Services provided by advertisement agencies relating to making or preparation of advertisements would not be covered in this negative list entry and would thus be taxable. This would also not cover commissions received by advertisement agencies from the broadcasting or publishing companies for facilitating business, which may also include some portion for the preparation of advertisement.
4.7.3 In case a person provides a composite service of providing space for advertisement that is covered in the negative list entry coupled with taxable service relating to design and preparation of the advertisement how will its taxability be determined?
This would be a case of bundled services taxability of which has to be determined in terms of the principles laid down in section 66F of the Act.
Bundled services have been defined in the said section as provision of one type of service with another type or types of services.
If such services are bundled in the ordinary course of business then the bundle of services will be treated as consisting entirely of such service which determines the dominant nature of such a bundle.
If such services are not bundled in the ordinary course of business then the bundle of services will be treated as consisting entirely of such service which attracts the highest liability of service tax.
For guidance on how to determine whether or not a bundle of services is bundled in the ordinary course of business please refer to Guidance Note 7 of this Guidance Paper.
4.8 Access to a road or a bridge on payment of toll charges
4.8.1 Is access to national highways or state highways also covered in this entry?
Yes. National highways or state highways are also roads and hence covered in this entry.
4.8.2. Are collection charges or service charges paid to any toll collecting agency also covered?
No. The negative list entry only covers access to a road or a bridge on payment of toll charges. Services of toll collection on behalf of an agency authorized to levy toll are in the nature of services used for providing the negative list services. As per the principle laid down in sub section (1) of section 66F of the Act the reference to a service by nature or description in the Act will not include reference to a service used for providing such service.
4.9 Betting, gambling or lottery
“Betting or gambling’ has been defined in section 65B of the Act as ‘putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring’.
4.9.1. Are auxiliary services that are used for organizing or promoting betting or gambling events also covered in this entry?
No. These services are in the nature of services used for providing the negative list services of betting or gambling. As per the principle laid down in sub section (1) of section 66F of the Act the reference to a service by nature or description in the Act will not include reference to a service used for providing such service.
4.10 Entry to Entertainment Events and Access to Amusement Facilities.
‘Entertainment events’ has been defined in section 65B of the Act ‘as an event or a performance which is intended to provide recreation, pastime, fun or enjoyment, such as exhibition of cinematographic films, circus, concerts, sporting events, fairs, pageants, award functions, dance performances, musical performances, theatrical performances including cultural programs, drama, ballets or any such event or programme’.
‘Amusement facility’ has been defined in the Act as ‘a facility where fun or recreation is provided by means of rides, gaming devices or bowling alleys in amusement parks, amusement arcades, water parks, theme parks or such other place but does not include a place within such facility where other services are provided’.
4.10.1 If a cultural programme, drama or a ballet is held in an open garden and not in a theatre would it qualify as an entertainment event?
Yes. The words used in the definition are ‘theatrical performances’ and not ‘performances in theatres’. A cultural programme, drama or a ballet preformed in the open does not cease to be a theatrical performance provided it is preformed in the manner it is preformed in a theatre, i.e. before an audience.
4.10.2 Would a standalone ride set up in a mall qualify as an amusement facility?
Yes. A standalone amusement ride in a mall is also a facility in which fun or recreation is provided by means of a ride. Access to such amusement ride on payment of charges would be covered in the negative list.
4.10.3 Would entry to video parlors exhibiting movies played on a DVD player and displayed through a TV screen be covered in the entry?
Yes. Such exhibition is an exhibition of cinematographic film.
4.10.4 Would membership of a club qualify as access to an amusement facility?
No. A club does not fall in the definition of an amusement facility.
4.10.5 Would auxiliary services provided by a person, like an event manager, for organizing an entertainment event or by an entertainer for providing the entertainment to an entertainment event organizer be covered in this entry?
No. Such services are in the nature of services used for providing the service specified in this negative list entry and w2ould not be covered in the ambit of such specified service by operation of the rule of interpretation contained in clause (1) of section 66F of the Act. For guidance on the rules of interpretation please refer to Guidance Note 7.
4.11 Transmission or distribution of electricity
4.11.1 What is the meaning of electricity transmission or distribution utility?
An ‘electricity transmission or distribution utility’ has also been defined in section 65B of the act. It includes the following –
the Central Electricity Authority
a State Electricity Board
the Central Transmission Utility (CTU)
a State Transmission Utility (STU) notified under the Electricity Act, 2003 (36 of 2003)
a distribution or transmission licensee licensed under the said Act
any other entity entrusted with such function by the Central or State Government
4.11.2 If charges are collected by a developer or a housing society for distribution of electricity within a residential complex then are such services covered under this entry?
No. The developer or the housing society would be covered under this entry only if it is entrusted with such function by the Central or a State government or if it is, for such distribution, a distribution licensee licensed under the Electricity Act, 2003.
4.11.3 If the services provided by way installation of gensets or similar equipment by private contractors for distribution of electricity covered by this entry?
No. the entry does not cover services provided by private contractors. Moreover the services provided are not by way of transmission or distribution of electricity.
4.12 Specified services relating to education
The following services relating to education are specified in the negative list –
pre-school education and education up to higher secondary school or equivalent
education as a part of a prescribed curriculum for obtaining a qualification recognized by law for the time being in force;
education as a part of an approved vocational education course
4.12.1 Are services provided by international schools giving international certifications like IB also covered in this entry?
Yes. Services by way of education up to higher secondary school or equivalent are covered in this entry.
4.12.2 Are services provided by boarding schools covered in this entry?
Boarding schools provide service of education coupled with other services like providing dwelling units for residence and food. This may be a case of bundled services if the charges for education and lodging and boarding are inseparable. Their taxability will be determined in terms of the principles laid down in section 66F of the Act. Such services in the case of boarding schools are bundled in the ordinary course of business. Therefore the bundle of services will be treated as consisting entirely of such service which determines the dominant nature of such a bundle. In this case since dominant nature is determined by the service of education other dominant service of providing residential dwelling is also covered in a separate entry of the negative list, the entire bundle would be treated as a negative list service.
4.12.3 Are services provided to educational institutions also covered in this entry?
No. Such services are not covered under the negative list entry. However certain services provided to educational institutions are separately exempted by a notification:
Services to an educational institution by way of catering under the centrally assisted mid – day meals scheme sponsored by government.
Transport to and fro such exempt institutes.
Services to or by an institution in relation to educational services, where the educational services are exempt from the levy of service tax, by way of services in relation to admission to such education.
4.12.4 Are private tuitions covered in the entry relating to education?
No. However, private tutors can avail the benefit of threshold exemption.
4.12.5 Are services provided by way of education as a part of a prescribed curriculum for obtaining a qualification recognized by a law of a foreign country covered in the negative list entry?
No. To be covered in the negative list a course should be recognized by an Indian law.
4.12.6 If a course in a college leads to dual qualification only one of which is recognized by law would the service provided by the college by way of such education be covered in this entry?
Provision of dual qualifications is in the nature of two separate services as the curriculum and fees for each of such qualifications are prescribed separately. Service in respect of each qualification would, therefore, be assessed separately. If an artificial bundle of service is created by clubbing two courses together, only one of which leads to a qualification recognized by law, then by application of the rule of determination of taxability of a service which is not bundled in the ordinary course of business contained in section 66F of the Act it is liable to be treated as a course which attracts the highest liability of service tax. However incidental auxiliary courses provided by way of hobby classes or extra-curricular activities in furtherance of overall well being will be an example of naturally bundled course. One relevant consideration in such cases will be the amount of extra billing being done for the unrecognized component viz-a-viz the recognized course. (For guidance on ‘bundled services’ please refer to Guidance Note 7).
4.12.7 Are placement services provided to educational institutions for securing job placements for the students covered in this negative list entry?
No. Such services do n0t fall in the category of exempt services provided to educational institutions (please refer to point no 4.12.3 above).
4.12.8 Are services of conducting admission tests for admission to colleges exempt?
Yes in case the educational institutions are providing qualification recognized by law for the time being in force (please refer to point no 4.12.3 above).
4.12.9 In addition to the services specified in the negative list, which
educational services are exempt if provided by a charitable organization?
Please refer to point no 6.3
4.12.10 What are the courses which would qualify as an approved vocational education courses?
Approved vocational education courses have been specified in section 65B of the Act. These are –
a course run by an industrial training institute or an industrial training centre affiliated to the National Council for Vocational Training, offering courses in designated trades as notified under the Apprentices Act, 1961(52 of 1961)
a Modular Employable Skill Course, approved by the National Council of Vocational Training, run by a person registered with the Directorate General of Employment and Training, Ministry of Labour and Employment, Government of India;
a course run by an institute affiliated to the National Skill Development Corporation set up by the Government of India.
4.13 Services by way of renting of residential dwelling for use as residence
‘Renting’ has been defined in section 65B as ‘‘allowing, permitting or granting access, entry, occupation, usage or any such facility, wholly or partly, in an immovable property, with or without the transfer of possession or control of the said immovable property and includes letting, leasing, licensing or other similar arrangements in respect of immovable property’.
4.13.1 What is a ‘residential dwelling’?
The phrase ‘residential dwelling’ has not been defined in the Act. It has therefore to be interpreted in terms of the normal trade parlance as per which it is any residential accommodation, but does not include hotel, motel, inn, guest house, camp–site, lodge, house boat, or like places meant for temporary stay.
4.13.2 Would renting of a residential dwelling which is for use partly as a residence and partly for non residential purpose like an office of a lawyer or the clinic of a doctor be covered under this entry?
This would also be a case of bundled services as renting service is being provided both for residential use and for non residential use. Taxability of such bundled services has to be determined in terms of the principles laid down in section 66F of the Act. (Please refer to Guidance Note 7).
4.13.3 Would the nature of renting transactions explained in column 1 of the table below be covered in this negative list entry?
If…..
Then……
(i) a residential house taken on rent is
used only or predominantly for commercial or non-residential use.
the renting transaction is not covered in
this negative list entry.
(ii) if a house is given on rent and the
same is used as a hotel or a lodge
the renting transaction is not covered in
this negative list entry because the person taking it on rent is using it for a commercial purpose.
(iii) rooms in a hotel or a lodge are let out
whether or not for temporary stay
the renting transaction is not covered in
this negative list entry because a hotel or a lodge is not a residential dwelling.
(iv) government department allots
houses to its employees and charges a license fee
such service would be covered in the
negative list entry relating to services provided by government and hence non- taxable.
(v) furnished flats given on rent for temporary stay
these are in the nature of lodges or guest houses and hence not treatable as a residential dwelling
4.14 Financial sector
4.14.1 What are the “services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount”?
Illustrations of such services are -
Fixed deposits or saving deposits or any other such deposits in a bank for which return is received by way of interest.
Providing a loan or over draft facility for in consideration for payment of interest.
Mortgages or loans with a collateral security to the extent that the consideration for advancing such loans or advances are represented by way of interest.
Corporate deposits to the extent that the consideration for advancing such loans or advances are represented by way of interest or discount.
4.14.2 If any service charges or administrative charges or entry charges are recovered in addition to interest on a loan, advance or a deposit would such charges be also a part of this negative list entry?
No. The services of loans, advances or deposits are exempt in so far as the consideration is represented by way of interest or discount. Any charges or amounts collected over and above the interest or discount amounts would represent taxable consideration.
4.14.3 To what extent is invoice discounting covered in the negative list entry?
Invoice discounting is covered only to the extent consideration is represented by way of discount.
4.14.4 Would services provided by banks or authorized dealers of foreign exchange by way of sale of foreign exchange to general public be covered in this entry?
No. This entry only covers sale and purchase of foreign exchange between banks or authorized dealers of foreign exchange or between banks and such dealers
4.15 Service relating to transportation of passengers
The following services relating to transportation of passengers, with or without accompanied belongings, have been specified in the negative list.
Services by:
a stage carriage;
railways in a class other than (i) first class; or (ii) an AC coach;
metro, monorail or tramway;
inland waterways;
public transport, other than predominantly for tourism purpose, in a vessel of less than fifteen tonne net; and
metered cabs, radio taxis or auto rickshaws.
Following terms have been defined in section 65B of the Act –
stage carriage
inland waterways
metered cab
4.15.1 Are services by way of giving on hire of motor vehicles to state transport undertakings covered in this negative list entry?
No. However such services provided by way of hire of motor vehicle meant to carry more than 12 passengers to a State transport undertaking is exempt (refer entry no. 22 of Exhibit A2).
4.15.2 In some cases contract carriages get permission or temporary permits to ply as stage carriages. Would such services be taxable?
Specific exemption is available to services of transport passengers by a contract carriage for transportation of passengers, excluding tourism, conducted tours, charter or hire. (Refer entry No. 23 of Exhibit A2).
4.15.3 Are national waterways covered in the definition of inland waterways?
Yes.
4.16 Service relating to transportation of goods
The following services provided in relation to transportation of goods are specified in the negative list. Services:-
by road except the services of (i) a goods transportation agency; or (ii) a courier agency
by aircraft or vessel from a place outside India to the first customs station of landing in India; or
by inland waterways.
4.16.1 Are all services provided by goods transport agency excluded from the negative list?
Yes. However, there are separate exemptions available to the services provided by the goods transport agency. These are services by way of transportation of –
fruits, vegetables, eggs, milk, food grains or pulses in a goods carriage;
goods where gross amount charged on a consignment transported in a single goods carriage does not exceed one thousand five hundred rupees; or
goods where gross amount charged for transportation of all such goods for a single consignee in the goods carriage does not exceed rupees seven hundred fifty.
4.16.2 Are goods transport agencies liable to pay tax in all cases or are provisions relating to reverse charge also applicable after introduction of negative list?
The provisions relating to reverse charge, i.e. service tax is liable to be paid by the consigner or consignee in specified cases, are applicable even after the introduction of negative list.
4.16.3 Are the following services of transportation of goods covered in the negative list entry?
Nature of service relating to transportation of goods
Whether covered in the negative list entry?
By railways
No
By air within the country or abroad
No
By a vessel in the coastal waters
No
By a vessel on a national waterway
Yes
Services provided by a GTA
No
4.16.4 Are services provided as agents for inland waterways covered by this entry?
No. these are in the nature of services used for providing the negative list entry service of transport of goods on inland waterways and would not be covered by application of the rule for interpretation where services are specified by way of description contained in clause (1) of section 66F of the Act.(for guidance on this rule please refer to Guidance Note 7)
4.16.5 If transportation of goods takes place from Delhi to Jammu by road then how would the taxability of such transportation be determined considering that Jammu is located in at a place outside taxable territory?
Please refer to Guidance Paper: GPB on Place of Provision of service.
4.17 Funeral, burial, crematorium or mortuary services including transportation of the deceased
This negative list entry is self-explanatory.
Service’ has been defined in clause (44) of the new section 65B and means –
any activity
for consideration
carried out by a person for another
and includes a declared service.
The said definition further provides that ‘Service’ does not include –
any activity that constitutes only a transfer in title of (i) goods or (ii) immovable property by way of sale, gift or in any other manner
a transaction only in (iii) money or (iv) actionable claim
any service provided by an employee to an employer in the course of the employment.
fees payable to a court or a tribunal set up under a law for the time being in force
In terms of Section 66B of the Act, service tax will be leviable on all services provided in the taxable territory by a person to another for a consideration other than the services specified in the negative list. The services specified in the negative list therefore go out of the ambit of chargeability of service tax. The negative list of service is specified in the Act itself in Section 66 D. For sake of ease of reference the negative list of services is given in Exhibit A1. In all, there are seventeen heads of services that have been specified in the negative list. The scope and ambit of these is explained in paras below
Negative List of Services not liable for service tax :Union budget 2012
Services by Government or a local authority excluding the following services to the extent they are not covered elsewhere:(i) services by the Department of Posts by way of speed post, express parcel post, life insurance and agency services provided to a person other than Government;(ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport;(iii) transport of goods or passengers; or(iv) support services, other than services covered under clauses (i) to (iii) above, provided to business entities.
Services by the Reserve Bank of India.
Services by a foreign diplomatic mission located in India.
Services relating to agriculture by way of –(i) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or seed testing;(ii) supply of farm labour;(iii) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter essential characteristics of agricultural produce but make it only marketable for the primary market;(iv) renting or leasing of agro machinery or vacant land with or without a structure incidental to its use;(v) loading, unloading, packing, storage or warehousing of agricultural produce;(vi) agricultural extension services;(vii) services by any Agricultural Produce Marketing Committee or Board or services provided by a commission agent for sale or purchase of agricultural produce.
Trading of goods.
Any process amounting to manufacture or production of goods.
Selling of space or time slots for advertisements other than advertisements broadcast by radio or television.
Service by way of access to a road or a bridge on payment of toll charges.
Betting, gambling or lottery.
Admission to entertainment events or access to amusement facilities.
Transmission or distribution of electricity by an electricity transmission or distribution utility.
Services by way of –(i) pre-school education and education up to higher secondary school or equivalent;(ii) education as a part of a curriculum for obtaining a qualification recognized by law;(iii) education as a part of an approved vocational education course.
Services by way of renting of residential dwelling for use as residence;
Services by way of –(i) extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount;(ii) inter-se sale or purchase of foreign currency amongst banks or authorized dealers of foreign exchange or amongst banks and such dealers;
Service of transportation of passengers, with or without accompanied belongings, by –(i) a stage carriage;(ii) railways in a class other than –(A) first class; or(B) an air conditioned coach;(iii) metro, monorail or tramway;(iv) inland waterways;(v) public transport in a vessel of less than fifteen tonne net, other than predominantly for tourism purpose; and(vi) metered cabs, radio taxis or auto rickshaws;
Services by way of transportation of goods –(i) by road except the services of –(A) a goods transportation agency; or(B) a courier agency;(ii) by an aircraft or a vessel from a place outside India to the first customs station of landing in India; or(iii) by inland waterways;
Funeral, burial, crematorium or mortuary services including transportation of the deceased.
Details of Negative List of services.
4.1 Services provided by Government or local authority
4.1.1 Are all services provided by Government or local authority covered in the negative list?
No. Most services provided by the Central or state Government or local authorities are in the negative list except the following:
a) services provided by the Department of Posts by way of speed post, express parcel post, life insurance and agency services carried out on payment of commission on non government business;
b) services in relation to a vessel or an aircraft inside or outside the precincts of a port or an airport;
c) transport of goods and/or passengers;
d) support services, other than those covered by clauses (a) to (c) above, to business entities.
4.1.2 Would the taxable services provided by the Government be charged to tax if they are otherwise exempt or specified elsewhere in the negative list?
No. If the services provided by the government or local authorities that have been excluded from the negative list entry are otherwise specified in the negative list then such services would also not be taxable.
4.1.3 ‘Government’ has not been defined in the Act. What is the meaning of Government?
Since ‘Government’ has not been defined in the Act, the definition of ‘Government’ as contained in the General Clauses Act, 1897 would be applicable as per which ‘Government’ includes both State Government and Central Government. Further as per the General Clause Act 1897, State includes Union Territory.
4.1.4 Are various corporations formed under Central Acts or State Acts or various government companies registered under the Companies Act, 1956 or autonomous institutions set up by a special Acts covered under the definition of ‘Government’?
No. In terms of the definition of ‘Government’ as contained in the General Clause Act, 1857 and as per the settled position of law such corporations or authorities or companies are not included in the definition of ‘Government’. Services provided by such entities would, therefore, not be entitled to the negative list entry relating to the ‘Government’. It would also not include regulatory bodies.
4.1.5 What entities are then covered under ‘Government’?
‘Government’ would include various departments and offices of the Central or State Government or the U.T. Administrations which carry out their functions in the name and by order of the President of India or the Governor of a State.
4.1.6 Would a department of the Government need to get itself registered for each of the services listed in answer to Q. No.4.1.1 above?
For the support services provided by the Government to business entities government departments will not have to get registered because service tax will be payable on such services by the service receiver i.e. the business entities receiving the service under reverse charge mechanism in terms of the provisions of section the Act and the notification proposed to be issued under the said section. For services mentioned at (a) to (c) of the list (point 4.1.1 above refers) tax will be payable by the concerned department.
4.1.7 What is the meaning of “support services” which appears to be a phrase of wide ambit?
Support services have been defined in section 65B of the Act as ‘infrastructural, operational, administrative, logistic marketing or any other support of any kind comprising functions that entities carry out in ordinary course of operations themselves but may obtain as services by outsourcing from others for any reason whatsoever and shall include advertisement and promotion, construction or works contract, renting of movable or immovable property, security, testing and analysis’. Thus services which are provided by government in terms of their sovereign right to business entities are not support services e.g. grant of mining or licensing rights.
4.1.8 What is the meaning of local authority?
Local authority is defined in 65B and means the following:-
A Panchayat as referred to in clause (d) of article 243 of the Constitution
A Municipality as referred to in clause (e) of article 243P of the Constitution
A Municipal Committee and a District Board, legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund
A Cantonment Board as defined in section 3 of the Cantonments Act, 2006
A regional council or a district council constituted under the Sixth Schedule to the Constitution
A development board constituted under article 371 of the Constitution, or
A regional council constituted under article 371A of the Constitution.
4.2 Services provided by Reserve Bank of India
4.2.1 Are all services provided by the Reserve Bank of India in the negative list?
Yes. All services provided by the Reserve Bank of India are in the negative list.
4.2.2 What about services provided to the Reserve Bank of India?
Services provided to the Reserve Bank of India are not in the negative list and would be taxable unless otherwise covered in any other entry in the negative list.
4.3 Services by a foreign diplomatic mission located in India
Any service that is provided by a diplomatic mission of any country located in India are in the negative list. This entry does not cover services, if any, provided by any office or establishment of an international organization.
4.4 Services relating to agriculture
The services relating to agriculture that are specified in the negative list are services relating to –
agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or seed testing;
supply of farm labour;
processes carried out at the agricultural farm including tending, pruning, cutting, harvesting, drying cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter essential characteristics of agricultural produce but makes it only marketable for the primary market;
renting of agro machinery or vacant land with or without a structure incidental to its use;
loading, unloading, packing, storage and warehousing of agricultural produce;
agricultural extension services;
services provided by any Agricultural Produce Marketing Committee or Board or services provided by commission agent for sale or purchase of agricultural produce;
4.4.1 What is the meaning of ‘agriculture’?
‘Agriculture’ has been defined in the Act as cultivation of plants and rearing or breeding of animals and other species of life forms for foods, fibre, fuel, raw materials or other similar products but does not include rearing of horses.
4.4.2 Are activities like breeding of fish (pisciculture), rearing of silk worms (sericulture), cultivation of ornamental flowers (floriculture) and horticulture, forestry included in the definition of agriculture?
Yes. These activities are included in the definition of agriculture.
4.4.3 What is the meaning of agricultural produce?
Agricultural produce has also been defined in section 65B of the Act which means any produce of agriculture on which either no processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market. It also includes specified processes in the definition like tending, pruning, grading, sorting etc. which may be carried out at the farm or elsewhere as long as they do not alter the essential characteristics.
4.4.4 Would plantation crops like rubber, tea or coffee be also covered under agricultural produce?
Yes. Such plantation crops are also covered under agricultural produce.
4.4.5 Would potato chips or tomato ketchup qualify as agricultural produce?
No. In terms of the definition of agricultural produce, only such processing should be carried out as is usually done by cultivator producers which does not alter its essential characteristics but makes it marketable for primary market. Potato chips of tomato ketchup are manufactured through processes which alter the essential characteristic of farm produce (potatoes and tomatoes in this case).
4.4.6 Would leasing of vacant land with a green house or a storage shed meant for agricultural produce be covered in the negative list?
Yes. In terms of the specified services relating to agriculture ‘leasing’ of vacant land with or without structure incidental to its use’ is covered in the negative list. Therefore, if vacant land has a structure like storage shed or a green house built on it which is incidental to its use for agriculture then its lease would be covered under the negative list entry.
4.4.7 What is the meaning of agricultural extension services?
Agricultural extension services have also been defined in section 65B of the Act as application of scientific research and knowledge to agricultural practices through farmer education or training.
4.4.8 What are the services referred to in the negative list entry pertaining to Agricultural Produce Marketing Committee or Board?
Agricultural Produce Marketing Committees or Boards are set up under a State Law for purpose of regulating the marketing of agricultural produce. Such marketing committees or boards have been set up in most of the States and provide a variety of support services for facilitating the marketing of agricultural produce by provision of facilities and amenities like shops, sheds, water, light, electricity, grading facilities etc. They also take measures for prevention of sale or purchase of agricultural produce below the minimum support price. APMCs collect market fees, license fees, rents etc. Services provided by such Agricultural Produce Marketing Committee or Board are covered in the negative list.
4.5 Trading of goods
4.5.1 Would activities of a commission agent or a clearing and forwarding agent who sells goods on behalf of another for a commission be included in trading of goods?
No. The services provided by commission agent or a clearing and forwarding agent are not in the nature of trading of goods. These are auxiliary for trading of goods. In terms of the provision of clause (1) of section 66F reference to service does not include reference to a service used for providing such service.(For guidance on clause (1) of section 66F please refer to point no 7.1.1 of this Guidance Paper) Moreover the title in the goods never passes on to such agents to come within the ambit of trading of goods.
4.5.2 Would future contracts in commodities be covered under trading of goods?
Yes. Futures contracts would be covered under trading of goods as these are contracts which involve transfer of title in goods on a future date at a pre-determined price.
4.5.3 Would commodity futures be covered under trading of goods?
Yes. In commodity futures actual delivery of goods does not normally take place and the purchaser under a futures contract normally offsets all obligations or closes out by selling an equal quantity of goods of the same description under another contract for delivery on the same date. There are, therefore, two contracts of sale/purchase involved which would fall in the category of trading of goods.
4.5.4 Would auxiliary services relating to future contracts or commodity futures be covered in the negative list entry relating to trading of goods?
No. Such services provided by commodity exchanges clearing houses or agents would not be covered in the negative list entry relating to trading of goods.
4.6 Processes amounting to manufacture or production of goods
The phrase ‘processes amounting to manufacture or production of goods’ has been defined in section 65B of the Act as a process on which duties of excise are leviable under section 3 of the Central Excise Act, 1944 (1 of 1944) or any process amounting to manufacture of alcoholic liquors for human consumption, opium, Indian hemp and other narcotic drugs and narcotics on which duties of excise are leviable under any State Act. This entry, therefore, covers manufacturing activity carried out on contract or job work basis provided duties of excise are leviable on such processes under the Central Excise Act, 1944 or any of the State Acts.
4.6.1 Would service tax be leviable on processes which do not amount to manufacture or production of goods?
Yes. Service tax would be levied on processes, unless otherwise specified in the negative list, not amounting to manufacture or production of goods carried out by a person for another for consideration. Some of such services relating to processes not amounting to manufacture are exempt as specified in entry no. 30 of Exhibit A2.
4.6.2 Would service tax be leviable on processes on which Central Excise Duty is leviable under the Central Excise Act, 1944 but are otherwise exempted?
No. If Central Excise duty is leviable on a particular process as the same amounts to manufacture then such process would be covered in the negative list even if there is a central excise duty exemption for such process.
4.7 Selling of space or time slots for advertisements other than advertisements broadcast by radio or television
‘Advertisement’ has been defined in section 65 B of the Act as form of presentation for promotion of, or bringing awareness about, any event, idea, immovable property, person, service, goods or actionable claim through newspaper, television, radio or any other means but does not include any presentation made in person.
4.7.1 Sale of space of time for advertisements not including sale of space for advertisement in print media and sale of time by a broadcasting agency or organization is currently taxed under clause (zzzm) of sub-section (105) of the Finance Act,1944. So what kind of sale of space or time would become taxable and what would be not taxable?
Taxable
Non-taxable
Sale of space or time for advertisement
to be broadcast on radio or television
Sale of space for advertisement in print
media
Sale of time slot by a broadcasting
organization.
Sale of space for advertisement in bill
boards, public places, buildings, conveyances, cell phones, automated teller machines, internet
Aerial advertising
4.7.2 Would services provided by advertisement agencies relating to preparation of advertisements be covered in the negative list entry relating to sale of space for advertisements?
No. Services provided by advertisement agencies relating to making or preparation of advertisements would not be covered in this negative list entry and would thus be taxable. This would also not cover commissions received by advertisement agencies from the broadcasting or publishing companies for facilitating business, which may also include some portion for the preparation of advertisement.
4.7.3 In case a person provides a composite service of providing space for advertisement that is covered in the negative list entry coupled with taxable service relating to design and preparation of the advertisement how will its taxability be determined?
This would be a case of bundled services taxability of which has to be determined in terms of the principles laid down in section 66F of the Act.
Bundled services have been defined in the said section as provision of one type of service with another type or types of services.
If such services are bundled in the ordinary course of business then the bundle of services will be treated as consisting entirely of such service which determines the dominant nature of such a bundle.
If such services are not bundled in the ordinary course of business then the bundle of services will be treated as consisting entirely of such service which attracts the highest liability of service tax.
For guidance on how to determine whether or not a bundle of services is bundled in the ordinary course of business please refer to Guidance Note 7 of this Guidance Paper.
4.8 Access to a road or a bridge on payment of toll charges
4.8.1 Is access to national highways or state highways also covered in this entry?
Yes. National highways or state highways are also roads and hence covered in this entry.
4.8.2. Are collection charges or service charges paid to any toll collecting agency also covered?
No. The negative list entry only covers access to a road or a bridge on payment of toll charges. Services of toll collection on behalf of an agency authorized to levy toll are in the nature of services used for providing the negative list services. As per the principle laid down in sub section (1) of section 66F of the Act the reference to a service by nature or description in the Act will not include reference to a service used for providing such service.
4.9 Betting, gambling or lottery
“Betting or gambling’ has been defined in section 65B of the Act as ‘putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring’.
4.9.1. Are auxiliary services that are used for organizing or promoting betting or gambling events also covered in this entry?
No. These services are in the nature of services used for providing the negative list services of betting or gambling. As per the principle laid down in sub section (1) of section 66F of the Act the reference to a service by nature or description in the Act will not include reference to a service used for providing such service.
4.10 Entry to Entertainment Events and Access to Amusement Facilities.
‘Entertainment events’ has been defined in section 65B of the Act ‘as an event or a performance which is intended to provide recreation, pastime, fun or enjoyment, such as exhibition of cinematographic films, circus, concerts, sporting events, fairs, pageants, award functions, dance performances, musical performances, theatrical performances including cultural programs, drama, ballets or any such event or programme’.
‘Amusement facility’ has been defined in the Act as ‘a facility where fun or recreation is provided by means of rides, gaming devices or bowling alleys in amusement parks, amusement arcades, water parks, theme parks or such other place but does not include a place within such facility where other services are provided’.
4.10.1 If a cultural programme, drama or a ballet is held in an open garden and not in a theatre would it qualify as an entertainment event?
Yes. The words used in the definition are ‘theatrical performances’ and not ‘performances in theatres’. A cultural programme, drama or a ballet preformed in the open does not cease to be a theatrical performance provided it is preformed in the manner it is preformed in a theatre, i.e. before an audience.
4.10.2 Would a standalone ride set up in a mall qualify as an amusement facility?
Yes. A standalone amusement ride in a mall is also a facility in which fun or recreation is provided by means of a ride. Access to such amusement ride on payment of charges would be covered in the negative list.
4.10.3 Would entry to video parlors exhibiting movies played on a DVD player and displayed through a TV screen be covered in the entry?
Yes. Such exhibition is an exhibition of cinematographic film.
4.10.4 Would membership of a club qualify as access to an amusement facility?
No. A club does not fall in the definition of an amusement facility.
4.10.5 Would auxiliary services provided by a person, like an event manager, for organizing an entertainment event or by an entertainer for providing the entertainment to an entertainment event organizer be covered in this entry?
No. Such services are in the nature of services used for providing the service specified in this negative list entry and w2ould not be covered in the ambit of such specified service by operation of the rule of interpretation contained in clause (1) of section 66F of the Act. For guidance on the rules of interpretation please refer to Guidance Note 7.
4.11 Transmission or distribution of electricity
4.11.1 What is the meaning of electricity transmission or distribution utility?
An ‘electricity transmission or distribution utility’ has also been defined in section 65B of the act. It includes the following –
the Central Electricity Authority
a State Electricity Board
the Central Transmission Utility (CTU)
a State Transmission Utility (STU) notified under the Electricity Act, 2003 (36 of 2003)
a distribution or transmission licensee licensed under the said Act
any other entity entrusted with such function by the Central or State Government
4.11.2 If charges are collected by a developer or a housing society for distribution of electricity within a residential complex then are such services covered under this entry?
No. The developer or the housing society would be covered under this entry only if it is entrusted with such function by the Central or a State government or if it is, for such distribution, a distribution licensee licensed under the Electricity Act, 2003.
4.11.3 If the services provided by way installation of gensets or similar equipment by private contractors for distribution of electricity covered by this entry?
No. the entry does not cover services provided by private contractors. Moreover the services provided are not by way of transmission or distribution of electricity.
4.12 Specified services relating to education
The following services relating to education are specified in the negative list –
pre-school education and education up to higher secondary school or equivalent
education as a part of a prescribed curriculum for obtaining a qualification recognized by law for the time being in force;
education as a part of an approved vocational education course
4.12.1 Are services provided by international schools giving international certifications like IB also covered in this entry?
Yes. Services by way of education up to higher secondary school or equivalent are covered in this entry.
4.12.2 Are services provided by boarding schools covered in this entry?
Boarding schools provide service of education coupled with other services like providing dwelling units for residence and food. This may be a case of bundled services if the charges for education and lodging and boarding are inseparable. Their taxability will be determined in terms of the principles laid down in section 66F of the Act. Such services in the case of boarding schools are bundled in the ordinary course of business. Therefore the bundle of services will be treated as consisting entirely of such service which determines the dominant nature of such a bundle. In this case since dominant nature is determined by the service of education other dominant service of providing residential dwelling is also covered in a separate entry of the negative list, the entire bundle would be treated as a negative list service.
4.12.3 Are services provided to educational institutions also covered in this entry?
No. Such services are not covered under the negative list entry. However certain services provided to educational institutions are separately exempted by a notification:
Services to an educational institution by way of catering under the centrally assisted mid – day meals scheme sponsored by government.
Transport to and fro such exempt institutes.
Services to or by an institution in relation to educational services, where the educational services are exempt from the levy of service tax, by way of services in relation to admission to such education.
4.12.4 Are private tuitions covered in the entry relating to education?
No. However, private tutors can avail the benefit of threshold exemption.
4.12.5 Are services provided by way of education as a part of a prescribed curriculum for obtaining a qualification recognized by a law of a foreign country covered in the negative list entry?
No. To be covered in the negative list a course should be recognized by an Indian law.
4.12.6 If a course in a college leads to dual qualification only one of which is recognized by law would the service provided by the college by way of such education be covered in this entry?
Provision of dual qualifications is in the nature of two separate services as the curriculum and fees for each of such qualifications are prescribed separately. Service in respect of each qualification would, therefore, be assessed separately. If an artificial bundle of service is created by clubbing two courses together, only one of which leads to a qualification recognized by law, then by application of the rule of determination of taxability of a service which is not bundled in the ordinary course of business contained in section 66F of the Act it is liable to be treated as a course which attracts the highest liability of service tax. However incidental auxiliary courses provided by way of hobby classes or extra-curricular activities in furtherance of overall well being will be an example of naturally bundled course. One relevant consideration in such cases will be the amount of extra billing being done for the unrecognized component viz-a-viz the recognized course. (For guidance on ‘bundled services’ please refer to Guidance Note 7).
4.12.7 Are placement services provided to educational institutions for securing job placements for the students covered in this negative list entry?
No. Such services do n0t fall in the category of exempt services provided to educational institutions (please refer to point no 4.12.3 above).
4.12.8 Are services of conducting admission tests for admission to colleges exempt?
Yes in case the educational institutions are providing qualification recognized by law for the time being in force (please refer to point no 4.12.3 above).
4.12.9 In addition to the services specified in the negative list, which
educational services are exempt if provided by a charitable organization?
Please refer to point no 6.3
4.12.10 What are the courses which would qualify as an approved vocational education courses?
Approved vocational education courses have been specified in section 65B of the Act. These are –
a course run by an industrial training institute or an industrial training centre affiliated to the National Council for Vocational Training, offering courses in designated trades as notified under the Apprentices Act, 1961(52 of 1961)
a Modular Employable Skill Course, approved by the National Council of Vocational Training, run by a person registered with the Directorate General of Employment and Training, Ministry of Labour and Employment, Government of India;
a course run by an institute affiliated to the National Skill Development Corporation set up by the Government of India.
4.13 Services by way of renting of residential dwelling for use as residence
‘Renting’ has been defined in section 65B as ‘‘allowing, permitting or granting access, entry, occupation, usage or any such facility, wholly or partly, in an immovable property, with or without the transfer of possession or control of the said immovable property and includes letting, leasing, licensing or other similar arrangements in respect of immovable property’.
4.13.1 What is a ‘residential dwelling’?
The phrase ‘residential dwelling’ has not been defined in the Act. It has therefore to be interpreted in terms of the normal trade parlance as per which it is any residential accommodation, but does not include hotel, motel, inn, guest house, camp–site, lodge, house boat, or like places meant for temporary stay.
4.13.2 Would renting of a residential dwelling which is for use partly as a residence and partly for non residential purpose like an office of a lawyer or the clinic of a doctor be covered under this entry?
This would also be a case of bundled services as renting service is being provided both for residential use and for non residential use. Taxability of such bundled services has to be determined in terms of the principles laid down in section 66F of the Act. (Please refer to Guidance Note 7).
4.13.3 Would the nature of renting transactions explained in column 1 of the table below be covered in this negative list entry?
If…..
Then……
(i) a residential house taken on rent is
used only or predominantly for commercial or non-residential use.
the renting transaction is not covered in
this negative list entry.
(ii) if a house is given on rent and the
same is used as a hotel or a lodge
the renting transaction is not covered in
this negative list entry because the person taking it on rent is using it for a commercial purpose.
(iii) rooms in a hotel or a lodge are let out
whether or not for temporary stay
the renting transaction is not covered in
this negative list entry because a hotel or a lodge is not a residential dwelling.
(iv) government department allots
houses to its employees and charges a license fee
such service would be covered in the
negative list entry relating to services provided by government and hence non- taxable.
(v) furnished flats given on rent for temporary stay
these are in the nature of lodges or guest houses and hence not treatable as a residential dwelling
4.14 Financial sector
4.14.1 What are the “services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount”?
Illustrations of such services are -
Fixed deposits or saving deposits or any other such deposits in a bank for which return is received by way of interest.
Providing a loan or over draft facility for in consideration for payment of interest.
Mortgages or loans with a collateral security to the extent that the consideration for advancing such loans or advances are represented by way of interest.
Corporate deposits to the extent that the consideration for advancing such loans or advances are represented by way of interest or discount.
4.14.2 If any service charges or administrative charges or entry charges are recovered in addition to interest on a loan, advance or a deposit would such charges be also a part of this negative list entry?
No. The services of loans, advances or deposits are exempt in so far as the consideration is represented by way of interest or discount. Any charges or amounts collected over and above the interest or discount amounts would represent taxable consideration.
4.14.3 To what extent is invoice discounting covered in the negative list entry?
Invoice discounting is covered only to the extent consideration is represented by way of discount.
4.14.4 Would services provided by banks or authorized dealers of foreign exchange by way of sale of foreign exchange to general public be covered in this entry?
No. This entry only covers sale and purchase of foreign exchange between banks or authorized dealers of foreign exchange or between banks and such dealers
4.15 Service relating to transportation of passengers
The following services relating to transportation of passengers, with or without accompanied belongings, have been specified in the negative list.
Services by:
a stage carriage;
railways in a class other than (i) first class; or (ii) an AC coach;
metro, monorail or tramway;
inland waterways;
public transport, other than predominantly for tourism purpose, in a vessel of less than fifteen tonne net; and
metered cabs, radio taxis or auto rickshaws.
Following terms have been defined in section 65B of the Act –
stage carriage
inland waterways
metered cab
4.15.1 Are services by way of giving on hire of motor vehicles to state transport undertakings covered in this negative list entry?
No. However such services provided by way of hire of motor vehicle meant to carry more than 12 passengers to a State transport undertaking is exempt (refer entry no. 22 of Exhibit A2).
4.15.2 In some cases contract carriages get permission or temporary permits to ply as stage carriages. Would such services be taxable?
Specific exemption is available to services of transport passengers by a contract carriage for transportation of passengers, excluding tourism, conducted tours, charter or hire. (Refer entry No. 23 of Exhibit A2).
4.15.3 Are national waterways covered in the definition of inland waterways?
Yes.
4.16 Service relating to transportation of goods
The following services provided in relation to transportation of goods are specified in the negative list. Services:-
by road except the services of (i) a goods transportation agency; or (ii) a courier agency
by aircraft or vessel from a place outside India to the first customs station of landing in India; or
by inland waterways.
4.16.1 Are all services provided by goods transport agency excluded from the negative list?
Yes. However, there are separate exemptions available to the services provided by the goods transport agency. These are services by way of transportation of –
fruits, vegetables, eggs, milk, food grains or pulses in a goods carriage;
goods where gross amount charged on a consignment transported in a single goods carriage does not exceed one thousand five hundred rupees; or
goods where gross amount charged for transportation of all such goods for a single consignee in the goods carriage does not exceed rupees seven hundred fifty.
4.16.2 Are goods transport agencies liable to pay tax in all cases or are provisions relating to reverse charge also applicable after introduction of negative list?
The provisions relating to reverse charge, i.e. service tax is liable to be paid by the consigner or consignee in specified cases, are applicable even after the introduction of negative list.
4.16.3 Are the following services of transportation of goods covered in the negative list entry?
Nature of service relating to transportation of goods
Whether covered in the negative list entry?
By railways
No
By air within the country or abroad
No
By a vessel in the coastal waters
No
By a vessel on a national waterway
Yes
Services provided by a GTA
No
4.16.4 Are services provided as agents for inland waterways covered by this entry?
No. these are in the nature of services used for providing the negative list entry service of transport of goods on inland waterways and would not be covered by application of the rule for interpretation where services are specified by way of description contained in clause (1) of section 66F of the Act.(for guidance on this rule please refer to Guidance Note 7)
4.16.5 If transportation of goods takes place from Delhi to Jammu by road then how would the taxability of such transportation be determined considering that Jammu is located in at a place outside taxable territory?
Please refer to Guidance Paper: GPB on Place of Provision of service.
4.17 Funeral, burial, crematorium or mortuary services including transportation of the deceased
This negative list entry is self-explanatory.
Service Tax Changes
RATE OF SERVICE TAX (applicable w.e.f. 01.04.2012):
1. The rate of service tax is being increased from ten per cent. to twelve per cent.
2. Works contract service:-
Rate of tax under Composition Scheme has been changed from 4% to 4.8% plus cess.
1. The rate of service tax is being increased from ten per cent. to twelve per cent.
2. Works contract service:-
Rate of tax under Composition Scheme has been changed from 4% to 4.8% plus cess.
INCOME TAX CHANGES
1. Income Tax slabs Rates After Budget 2012
2. Income Tax calculator After Budget 2012
3. Deduction u/s 80C changes in budget Insurance policy
4. Deduction on interest on savings accounts
5. Deduction on preventive health check-up u/s 80D
6. Deduction on Rajiv Gandhi Equity Savings Scheme Launched
7. Senior citizens age For 80D, 80DDB ,Form 15H reduced to 60 Years
8. Good Bye to 80CCF Infra Bonds from FY 2012-13
9. Deduction 80G (donations) 80GGA over 10K must be paid in other than cash
10.Changes proposed in TDS in Budget 2012
11.Change In TCS(tax collection at source ) in union Budget 2012
12.TDS on transfer of certain immovable properties (other than agricultural land)
13.TCS on cash sale of bullion and jewellery
14.Alternate Minimum Tax (AMT) on all persons other than companies:Budget 2012
15.TAX AUDIT LIMIT 44AB ENHANCED 60 LAKH TO 100 LAKH ,15LAKH TO 25 LAKH
16.Income tax changes clause by clause :Budget 2012
17.ULIP will be costlier after Budget
2. Income Tax calculator After Budget 2012
3. Deduction u/s 80C changes in budget Insurance policy
4. Deduction on interest on savings accounts
5. Deduction on preventive health check-up u/s 80D
6. Deduction on Rajiv Gandhi Equity Savings Scheme Launched
7. Senior citizens age For 80D, 80DDB ,Form 15H reduced to 60 Years
8. Good Bye to 80CCF Infra Bonds from FY 2012-13
9. Deduction 80G (donations) 80GGA over 10K must be paid in other than cash
10.Changes proposed in TDS in Budget 2012
11.Change In TCS(tax collection at source ) in union Budget 2012
12.TDS on transfer of certain immovable properties (other than agricultural land)
13.TCS on cash sale of bullion and jewellery
14.Alternate Minimum Tax (AMT) on all persons other than companies:Budget 2012
15.TAX AUDIT LIMIT 44AB ENHANCED 60 LAKH TO 100 LAKH ,15LAKH TO 25 LAKH
16.Income tax changes clause by clause :Budget 2012
17.ULIP will be costlier after Budget
TAX AUDIT LIMIT 44AB ENHANCED 60 LAKH TO 100 LAKH ,15LAKH TO 25 LAKH
Under the existing provisions of section 44AB, every person carrying on business is required to get his accounts audited if the total sales, turnover or gross receipts in the previous year exceed sixty lakh rupees. Similarly, a person carrying on a profession is required to get his accounts audited if the total sales, turnover or gross receipts in the previous year exceed fifteen lakh rupees.
In order to reduce the compliance burden on small businesses and on professionals, it is proposed to increase the threshold limit of
total sales, turnover or gross receipts, specified under section 44AB for getting accounts audited, from sixty lakh rupees to one crore rupees in the case of persons carrying on business and
from fifteen lakh rupees to twenty five lakh rupees in the case of persons carrying on profession.
It is also proposed that for the purposes of presumptive taxation under section 44AD, the threshold limit of total turnover or gross receipts would be increased from sixty lakh rupees to one crore rupees.
Year wise limit for section 44AB tax audit from financial year 2009-10 is given here under .Two years back the limit was extended by 50 %
SR N0 FINANCIAL YEAR LIMIT (BUSINESS) PROFESSIONAL
1 2009-10 40 LAKH 10 LAKH
2 2010-11,2011-12 60 LAKH 15 LAKH
3 2012-13 ONWARDS 100 LAKH 25 LAKH
These amendments will take effect from 1st April, 2013 and will, accordingly, apply to the assessment year 2013-14 and subsequent assessment years.
In order to reduce the compliance burden on small businesses and on professionals, it is proposed to increase the threshold limit of
total sales, turnover or gross receipts, specified under section 44AB for getting accounts audited, from sixty lakh rupees to one crore rupees in the case of persons carrying on business and
from fifteen lakh rupees to twenty five lakh rupees in the case of persons carrying on profession.
It is also proposed that for the purposes of presumptive taxation under section 44AD, the threshold limit of total turnover or gross receipts would be increased from sixty lakh rupees to one crore rupees.
Year wise limit for section 44AB tax audit from financial year 2009-10 is given here under .Two years back the limit was extended by 50 %
SR N0 FINANCIAL YEAR LIMIT (BUSINESS) PROFESSIONAL
1 2009-10 40 LAKH 10 LAKH
2 2010-11,2011-12 60 LAKH 15 LAKH
3 2012-13 ONWARDS 100 LAKH 25 LAKH
These amendments will take effect from 1st April, 2013 and will, accordingly, apply to the assessment year 2013-14 and subsequent assessment years.
Monday, September 12, 2011
How many times can I furnish a correction TDS/TCS statement?
A correction TDS/TCS statement can be furnished multiple times to incorporate changes in the regular TDS/TCS statement whereas a regular TDS/TCS statement will be accepted at the TIN central system only once.
What are the important points to be kept in mind while preparing correction statement more than once on the same regular statement?
You have to kept in mind, the following points while preparing correction statement more than once on the same regular statement:
1. The TDS/TCS statement on which correction is to be prepared should be updated with details as per all previous corrections.
2. Modifications/addition/deletion in correction statements accepted at the TIN central system only should be considered.
The first correction filed by me contains three types of correction (three PRNs / Token Number) and one of the types of correction has got rejected at the TIN central system. What should I do?
The steps as under should be followed:
1. You have to update modifications as per the accepted corrections in the TDS statement.
2. Identify the record for which correction was rejected earlier by its sequence no. and fields for identification
3. Correct the said record.
4. Correction statement should contain updated values as well as value of identification field as per regular statement.
Which Provisional Receipt Number / Token Number should I quote while preparing correction statement more than once on the same regular statement?
There are two fields for Provisional Receipt Number (PRN) / Token Number in a correction statement as under:
a. Original Provisional Receipt Number / Token Number - PRN of the regular statement should be mentioned in this field.
b. Previous Provisional Receipt Number / Token Number - PRN of the last accepted correction statement should be mentioned in this field. In case the value in this field is incorrectly mentioned, the statement will get rejected at TIN central system for the reason: "Either Previous Provisional Receipt No. provided is incorrect or combination of Original Provisional Receipt Number / Token Number and Previous Provisional Receipt Number / Token Number is not in sequence"
Example:
Single batch correction statement - Only one type of correction in the file
a. You have filed a regular statement having PRN / Token Number 010010200083255 and subsequently filed a single batch correction statement having PRN / Token Number 010010300074112. While preparing correction statement, you have to mention PRN / Token Number 010010200083255 in the field original PRN and the PRN / Token Number 010010300074112 in the field Previous PRN.
Multiple batch correction statement - different types of correction in a single file
b. You have filed a regular statement having PRN / Token Number 010010200083255 and subsequently filed a multi batch correction statement having three batches and corresponding PRNs / Token Numbers as 010010300074112, 010010300074123 and 010010300074134. While preparing the correction statement, you have to mention PRN / Token Number 010010200083255 in the field original PRN and check the status of all the three PRNs of correction statement.
If all the three PRNs / Token Numbers are accepted at the TIN central system, you may mention any of the three PRNs / Token Numbers in the field previous PRN.
If any of the three PRNs / Token Numbers is rejected, then you should mention the PRN / Token Number which has been accepted at the TIN central system in the field Previous PRN.
If all the three PRNs / Token Numbers are rejected, then you must mention the PRN / Token Number of the regular statement, i.e. 010010200083255 in the field Previous PRN.
How many times can I update PAN of a deductee/transacting party?
Structurally valid PAN of a deductee in the regular statement can be updated to another structurally valid PAN only once.
When does a statement get ‘Partially Accepted’?
A correction statement containing updates in PAN of deductee/employee may get Partially Accepted. This is possible when the PAN in the any of the records being updated by you in the correction statement is invalid, i.e. PAN not present in PAN Master Database. In such a scenario, the said record gets rejected resulting in partial acceptance of the statement.
What should I do if the status of correction statement filed by me is ‘Partially accepted’?
In case correction statement is in status ‘Partially accepted’, you have follow steps as under:
1. You have to update modifications as per the accepted records in the TDS statement.
2. Identify the deductee/salary record which has got rejected due to invalid PAN.
3. Rectify the incorrect PAN
4. Correction statement should contain value of identification keys as per regular statement along with the updated values.
What could be the cause of rejection of TDS/TCS statement for the reason “Total Deposit amount of deductees is more than Challan amount actually deposited in bank”?
The total tax deposited amount as per challan should be greater than or equal to the total tax deposited amount as per deductee details, else a regular TDS/TCS statement will not get validated through FVU.
If you file a correction statement for adding deductee records under a particular challan, the total tax deposited as per challan in regular statement should be greater than or equal to the total tax deposited in deductee details as per regular as well as correction statement.
Note: Amount in the fields Interest and others in the challan is not considered in the total tax deposited as per challan.
Provisional Receipt Number is now referred as Token Number with effect from FY. 2010-11 onwards.
What are the important points to be kept in mind while preparing correction statement more than once on the same regular statement?
You have to kept in mind, the following points while preparing correction statement more than once on the same regular statement:
1. The TDS/TCS statement on which correction is to be prepared should be updated with details as per all previous corrections.
2. Modifications/addition/deletion in correction statements accepted at the TIN central system only should be considered.
The first correction filed by me contains three types of correction (three PRNs / Token Number) and one of the types of correction has got rejected at the TIN central system. What should I do?
The steps as under should be followed:
1. You have to update modifications as per the accepted corrections in the TDS statement.
2. Identify the record for which correction was rejected earlier by its sequence no. and fields for identification
3. Correct the said record.
4. Correction statement should contain updated values as well as value of identification field as per regular statement.
Which Provisional Receipt Number / Token Number should I quote while preparing correction statement more than once on the same regular statement?
There are two fields for Provisional Receipt Number (PRN) / Token Number in a correction statement as under:
a. Original Provisional Receipt Number / Token Number - PRN of the regular statement should be mentioned in this field.
b. Previous Provisional Receipt Number / Token Number - PRN of the last accepted correction statement should be mentioned in this field. In case the value in this field is incorrectly mentioned, the statement will get rejected at TIN central system for the reason: "Either Previous Provisional Receipt No. provided is incorrect or combination of Original Provisional Receipt Number / Token Number and Previous Provisional Receipt Number / Token Number is not in sequence"
Example:
Single batch correction statement - Only one type of correction in the file
a. You have filed a regular statement having PRN / Token Number 010010200083255 and subsequently filed a single batch correction statement having PRN / Token Number 010010300074112. While preparing correction statement, you have to mention PRN / Token Number 010010200083255 in the field original PRN and the PRN / Token Number 010010300074112 in the field Previous PRN.
Multiple batch correction statement - different types of correction in a single file
b. You have filed a regular statement having PRN / Token Number 010010200083255 and subsequently filed a multi batch correction statement having three batches and corresponding PRNs / Token Numbers as 010010300074112, 010010300074123 and 010010300074134. While preparing the correction statement, you have to mention PRN / Token Number 010010200083255 in the field original PRN and check the status of all the three PRNs of correction statement.
If all the three PRNs / Token Numbers are accepted at the TIN central system, you may mention any of the three PRNs / Token Numbers in the field previous PRN.
If any of the three PRNs / Token Numbers is rejected, then you should mention the PRN / Token Number which has been accepted at the TIN central system in the field Previous PRN.
If all the three PRNs / Token Numbers are rejected, then you must mention the PRN / Token Number of the regular statement, i.e. 010010200083255 in the field Previous PRN.
How many times can I update PAN of a deductee/transacting party?
Structurally valid PAN of a deductee in the regular statement can be updated to another structurally valid PAN only once.
When does a statement get ‘Partially Accepted’?
A correction statement containing updates in PAN of deductee/employee may get Partially Accepted. This is possible when the PAN in the any of the records being updated by you in the correction statement is invalid, i.e. PAN not present in PAN Master Database. In such a scenario, the said record gets rejected resulting in partial acceptance of the statement.
What should I do if the status of correction statement filed by me is ‘Partially accepted’?
In case correction statement is in status ‘Partially accepted’, you have follow steps as under:
1. You have to update modifications as per the accepted records in the TDS statement.
2. Identify the deductee/salary record which has got rejected due to invalid PAN.
3. Rectify the incorrect PAN
4. Correction statement should contain value of identification keys as per regular statement along with the updated values.
What could be the cause of rejection of TDS/TCS statement for the reason “Total Deposit amount of deductees is more than Challan amount actually deposited in bank”?
The total tax deposited amount as per challan should be greater than or equal to the total tax deposited amount as per deductee details, else a regular TDS/TCS statement will not get validated through FVU.
If you file a correction statement for adding deductee records under a particular challan, the total tax deposited as per challan in regular statement should be greater than or equal to the total tax deposited in deductee details as per regular as well as correction statement.
Note: Amount in the fields Interest and others in the challan is not considered in the total tax deposited as per challan.
Provisional Receipt Number is now referred as Token Number with effect from FY. 2010-11 onwards.
Sunday, September 11, 2011
Correction in OLTAS Income Tax/TDS challan after payment
Recently I faced a situation where the tax demand on regular assessment of my client for A.Y 2008-09 was deposited with a nationalized bank but wrongly the said payment of demand was done towards A.Y 2010-11. This situation may have been faced by many assessees because there may always a possibility of mentioning wrong Assessment year or wrong PAN/TAN etc in the TDS Challan or in Income Tax Challans.
In such situation the first thing that comes to mind is how one can get the challan corrected after the payment of tax so that right credit of tax is given to the assessee/deductor concerned. The power to amend such wrong details in challan after payment of tax in OLTAS has been given to Assessing officer and Bank depending upon the type of correction, which has been provided as follows for the benefit of all concerneds.
NSDL receives tax collection data as uploaded by the bank. It is not authorized to carry out any changes in the data sent by the bank to TIN.
The fields that can be corrected and the entity authorized to carry out corrections are as below:
Sl. No. Type of Correction on Challan Performed By
1 PAN/TAN - Assessing Officer
2 Assessment Year - Assessing Officer
3 Major Head - Assessing Officer /Bank
4 Minor Head - Assessing Officer
5 Nature of Payment - Assessing Officer
6 Total Amount - Bank
7 Name - Bank
Thus application should be made for correction to the A.O or Bank in case of any mistake in Income Tax/TDS Challan depending upon the type of correction as mentioned above.
In such situation the first thing that comes to mind is how one can get the challan corrected after the payment of tax so that right credit of tax is given to the assessee/deductor concerned. The power to amend such wrong details in challan after payment of tax in OLTAS has been given to Assessing officer and Bank depending upon the type of correction, which has been provided as follows for the benefit of all concerneds.
NSDL receives tax collection data as uploaded by the bank. It is not authorized to carry out any changes in the data sent by the bank to TIN.
The fields that can be corrected and the entity authorized to carry out corrections are as below:
Sl. No. Type of Correction on Challan Performed By
1 PAN/TAN - Assessing Officer
2 Assessment Year - Assessing Officer
3 Major Head - Assessing Officer /Bank
4 Minor Head - Assessing Officer
5 Nature of Payment - Assessing Officer
6 Total Amount - Bank
7 Name - Bank
Thus application should be made for correction to the A.O or Bank in case of any mistake in Income Tax/TDS Challan depending upon the type of correction as mentioned above.
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