Renting v/s Transportation of Passengers
As per Circular No. 177/09/2022-TRU Entry 15:
Renting of motor vehicle with operator for transport of passengers falls under Heading 9966. According to the explanatory notes to heading 9966, the service covered here is renting of motor vehicle for transport of passengers for a period of time where the renter (customer) defines how and when the vehicles will be operated, determining schedules, routes and other operational considerations.
Eg: Shoffr, Rego Cabs, Ola Rentals, Uber/Ola Outstation and includes all tour and travel operators who rent out vehicles with drivers across the country.
'Passenger transport services' on the other hand fall under Heading 9964. According to the explanatory notes Heading 9964 covers passenger transport services over pre-determined routes on pre-determined schedules.
Eg: Ola, Uber, Rapido, Bluesmart.
The circular also clarified that where the body corporate rents the motor vehicle for a period of time, during which the motor vehicle shall be at the disposal of the body corporate(i.e., to use in the manner as it likes subject to agreement with the person providing vehicle on rent), the service would fall under Heading 9966, and the body corporate shall be liable to pay GST on the same under RCM and not otherwise.
Rate of Tax on transportation of passengers and renting of transport vehicles (NN 11/2017 CT(R))
|
Heading |
Description |
Rate of Tax |
|
9964 (Passenger transport services) |
Transport of passengers by any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient. |
1) 2.5% - With a condition to not avail ITC except ITC availed in the same line of business at a rate not higher than @2.5%. 2) 6% - Without any restriction on availment of ITC |
|
Passenger transport services other than covered above |
9% (no ITC restrictions) |
|
|
9966 (Rental services of transport vehicles with operators) |
Renting of any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient. |
1) 2.5% - With a condition to not avail ITC except ITC availed in the same line of business at a rate not higher than @2.5%. 2) 6% - Without any restriction on availment of ITC |
|
Rental services of transport vehicles with operators, other than above |
9% (no ITC restrictions) |
Note: In terms of Entry 17 of NN 12/2017 CT(R) services by way of transportation of passengers by e-rickshaw or metered cabs is exempt if not provided through E-commerce operators.
The Delhi High Court in the case of UBER INDIA SYSTEMS PRIVATE LIMITED v/s UNION OF INDIA & ANR. (W.P.(C) 14579/2021 & CM APPL. 45963/2021) upheld that rickshaw or metered cabs provided through E-commerce operators is taxable and not violative of Article 14,19(1)(g) and 21 of the Constitution.
Now the question arises, what would the GST rate be in the following cases:
- Transportation of passengers in EVs where cost of electricity is included in the consideration charged to service recipient.
- Renting of EVs (Transport vehicle) with operator where cost of electricity is included in the consideration charged to service recipient.
Author's comments
- The GST Council in their 14th meeting recommended a concessional rate of tax i.e., 2.5%/6% as compared to regular rate of tax i.e., 9% when cost of fuel is included under Heading 9964 or 9966 for a sole reason that inputs such as fuel, etc. for a transportation sector were not in GST.
- It is also important to note that there is no GST on transmission or distribution of electricity by an electricity transmission or distribution utility as per entry 25 of NN 12/2017CT(R). Therefore, there is no GST input on electricity used to run EVs which are used to carry passengers or rented out to a third party.
- EV vehicles are listed at a GST rate of 5%, whereas other motor vehicles (other than SPVs) attract 28% + applicable cess (where applicable). This significant variance in tax rate is a testament to the country's initiative to decarbonise road transport.
- Based on the present wordings in the law, assuming that fuel does not include electricity, the residual provision would apply, i.e., 18% with ITC benefit.
- In the case of SENIOR ELECTRIC INSPECTOR VERSUS LAXMINARAYAN CHOPRA No.- C.A. 328 OF 1958 dt. August 16th, 1961, the Supreme Court held that the maxim "Contemporanea expositio est optima et fortissima in lege" which means that the best way to construe a document is to read it as it would have read when made as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. It was also held that unless a contrary intention appears, an interpretation should be given to the words by taking in new facts and situations, if the words are capable of comprehending them.
- The author opines that, the GST law has yet to modify the GST Rates with respect to EV vehicle related services. The concept of 'fuel/electricity' here should be mutandis-mutandis.
On the basis the above and the government's agenda to promote the EV Sector, the author is of the opinion the rate of tax would be 2.5%without ITC/6% with ITC on
o Transportation of passengers in EVs where cost of electricity is included in the consideration charged to service recipient.
o Renting of EVs (Transport vehicle) with operator where cost of electricity is included in the consideration charged to service recipient.
However, the author is of the opinion that the government should come up with the clarification on the same and it would be beneficial to the EV manufacturing sector and the transportation sector. It is also suggested that the EV Industry make a representation to the govt. to change the rate for transportation services to 5% with ITC benefit considering the rate of the vehicle vis-à-vis the service element. With the introduction of Section 11A this seems to be a possible benefit that the EV industry can look forward to.
Section 11A was introduced through section 116 Finance Act 2024 dated 16-8-2024. This section grants power to the government to waive off short levy or non-levy of GST of any practise followed by an industry by notification in the Official Gazette.
I would like to thank CA. Akshay M Hiregange sir for vetting this article.
Abbreviations:
- EV - Electric Vehicles
- NN - Notification
- ITC - Input Tax Credit
- GST - Goods and Services Tax
- CT(R) - Central Tax(Rate)
Disclaimer: The views expressed in this article are personal to the authors and are an attempt to interpret the nascent GST law. We recommend professional assistance where required.
The authors can also be reached at akshay@hnaindia.com & shashank@hnaindia.co.in.
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