Point of taxation rules 2011

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Querist : Anonymous

Querist : Anonymous (Querist)

23 April 2012 Dear Experts

Anyone can send the basic concepts of POT rules and procedure. I have to learn some basic concept especially time of credit.

Thanks in advance.

CA Dileep Surya Kumar

CA Dileep Surya Kumar (Expert)
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24 April 2012 Point of Taxation to determine rate of service tax and due date of payment of service tax

One major change made in service tax effective from 1-4-2011 is the introduction of Point of Taxation Rules, 2011 to (a) introduce provisions relating to payment of service tax on accrual basis instead of receipt basis and (b) to specify date relevant for determining rate of service tax.

So far, the provision was that service tax was payable on receipt basis i.e. on receipt of payment of the invoice or bill from customer or receipt of advance, whichever is earlier. Now, w.e.f. 1-4-2011, service tax will be payable on billing basis and not on ‘receipt of payment’ basis i.e. on accrual basis and not cash basis (Option has been granted to assessees to continue with payment on receipt basis upto 30-6-2011, if they so desire. Large companies may start payment on accrual basis from 1-4-2011 itself, as changing method in mid-year will be very cumbersome for them).

Section 65(105) of Finance Act, defines various taxable services as ‘any service provided or to be provided’. Section 67 (valuation provision) and section 66A (Import of service) also provide for ‘any service provided or to be provided’.

Thus, service tax was payable when advance was received, even if service was provided later. If there was change in rate of service tax, issue was what would be the rate applicable for payment of service tax. There was no clarity on this aspect. Now, clarity has been provided on this aspect under new Rules.

In MF(DR) DO F No. 334/3/2011-TRU dated 28-2-2011, it was clarified as follows, ‘The general rule will be that the time of provision of service will be the earliest of the following dates – (i) Date of which service is provided or to be provided (ii) Date of invoice (iii) Date of payment.

Can issue of invoice be a taxable event? – Really, issue of invoice is only a procedural aspect. Not issuing invoice in time can at the most be a procedural lapse. Why it should affect tax liability?

Relevant date for rate of tax - As per rule 5B of Service Tax Rules (as inserted w.e.f. 1-4-2011), the rate of tax in case of service provided or to be provided shall be the rate prevailing at the time when the service is deemed to have been provided as per Rules made in this regard.

Due date for payment of service tax - Rule 6(1) of Service Tax Rules (as amended w.e.f. 1-4-2011) states that service tax shall be paid to the credit of Government by 5th /6th of the month/quarter immediately following the month/quarter in which service is deemed to be provided (except in month of March) as per rules framed in this regard.

Rules to determine ‘date when service is deemed to be provided’ - ‘Point of Taxation Rules, 2011’ have been issued (which are effective from 1-4-2011) to make provisions in respect of date when a service shall be ‘deemed to provided’. These rules will be applicable for purposes of rule 5B and 6(1) of Service Tax Rules.

Meaning of ‘point of taxation’ – ‘Point of taxation’ means the point in time when a service shall be ‘deemed to have been provided’ [Rule 2(e) of Point of Taxation Rules, 2011]. This point will determine rate of service tax and due date of payment of service tax.

General provision relating to Point of taxation unless otherwise provided

Rule 3 of make general provisions in respect of ‘point of taxation’. These are applicable ‘unless otherwise provided’. Rules 4 to 9 of Point of Taxation Rules, 2011 make provisions in respect of various special cases. Thus, provisions of rule 3 apply only when any of rules 4 to 9 are not applicable.

Date of invoice is normally ‘point of taxation’ - As per Rule 3(a) of Point of Taxation Rules, 2011, unless otherwise provided (i.e. except cases covered under rules 4 to 9 as discussed below), time when invoice for the service provided or to be provided is issued, shall be ‘point of taxation’.

As per Rule 4A of Service Tax Rules, every person providing taxable service is required to issue invoice within fourteen days from the date of completion of service or receipt of any payments towards the value of such taxable service, whichever is earlier.

Thus, issue of invoice within 14 days of completion of service or receipt of advance, whichever earlier, is a statutory requirement.

It is possible that despite the statutory provision, an assessee may not issue of invoice within 14 days, to defer his tax liability. To ensure this does not happen, proviso to rule 3(a) of Point of Taxation Rules, 2011, states that if invoice is not issued within 14 days of completion of provision of the service, date of completion of service shall be ‘point of taxation’.

1.Receipt of advance before issue of invoice - If any payment (i.e. advance) is received by service provider before issue of an invoice, the date of receipt of payment will be ‘point of taxation’ to the extent of such payment [Rule 3(b) of Point of Taxation Rules, 2011]. Thus, once advance is received, service tax would become payable even if invoice was not issued.

It may be noted that even if invoice is issued within 14 days, the ‘point of taxation’ will still be date of receipt of advance. This would create difficulties where advance is received in later part of the month.

The various dates have been clarified as follows, vide para 3 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011.

Invoice not issued in 14 days. Part payment before completion, remaining later

2.Point of taxation in case of change in effective rate of service tax, if service was provided before change of effective rate

If taxable service was provided before change of rate (i.e. there is change in rate of service tax after provision of service), the point of taxation will be as follows –

3.Invoice and payment receipt after change of effective rate - If invoice is issued and payment is received after change in effective rate of tax, point of taxation will be date of receipt of payment or issue of invoice, whichever is earlier [Rule 4(a)(i) of Point of Taxation Rules, 2011] [Really incorrect since service was already provided prior to change. In any case, assessee has to ensure that he issues invoice before the change in rate becomes effective]

4.Invoice prior to change but payment receipt after change in effective rate - If invoice was issued prior to change of effective rate of tax but payment was received after change of effective rate, point of taxation shall be date of issuance of invoice [Rule 4(a)(ii) of Point of Taxation Rules, 2011].

5.Payment receipt before change in effective rate but invoice issued later - If payment is received prior to date of change of rate but invoice is issued after change in effective rate, point of taxation shall be date of receipt of payment [Rule 4(a)(iii) of Point of Taxation Rules, 2011].

6.Point of taxation in case of change in effective rate of service tax, if service was provided after change of rate

If taxable service was provided after change in effective rate of service tax, the point of taxation will be as follows –

Invoice prior to change, but payment received after change in effective rate - If invoice is issued prior to change of tax rate but payment is received after change in effective rate, point of taxation will be date of payment [Rule 4(b)(i) of Point of Taxation Rules, 2011]

Invoice and payment receipt both prior to change in effective rate - If invoice was issued earlier and payment was also received before change in effective rate, point of taxation shall be date of issuing of invoice or date of receipt of payment, whichever is earlier [Rule 4(b)(ii) of Point of Taxation Rules, 2011]

Invoice after change in effective rate but payment receipt both prior to change in effective rate - If invoice was raised after change of rate but payment was received before the date of change of rate, point of taxation will be date of issuing an invoice [Rule 4(b)(iii) of Point of Taxation Rules, 2011].

Thus, when there is change in effective rate, assessee should be very prompt in issuing invoice. Really , invoice preparation is a procedural matter. It should not have been taken as a ‘taxable event’.

Meaning of ‘change in effective rate of tax’

‘Change in the effective rate of tax’ shall also include change in the portion of value on which tax is payable in terms of a notification issued under the provisions of Finance Act, 1994 or rules made thereunder – Explanation to Rule 4 of Point of Taxation Rules inserted w.e.f. 1-4-2011.

Thus, change in rate of abatement or rates under composition scheme will also be ‘change in effective rate of tax’. Department, vide para 3 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 has clarified as follows –

‘Rule 4 has been amended to clarify that change in the effective rate of tax shall also include change in that portion of value on which tax is payable in terms of an exemption notification or rules made in this regard. It may be noted that an exemption has been granted in value for various services vide Notification No. 1/2006-ST dated 01.03.2006 which has the effect of payment of tax only on a part of the value. Similarly either the values or the rates at which tax is payable are provided under rule 6(7, 7A, 7B or 7C) of the Service Tax Rules, 1994 as well as the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Thus, whenever these values or the composition rates are changed, it would have the same effect as the change in the rate of duty. It is hereby further clarified that the rate of tax shall also include any other notification which is issued, rescinded or amended and has the effect of altering the taxability of any service’.

Payment of service tax in case of new services

In case of new services, tax is not payable if invoice is issued and payment is received before such service became taxable. Similarly, even if invoice is issued after the imposition of service tax, tax will not be payable if invoice is issued within 14 days from provision of service, as provided in rule 4A of Service Tax Rules i.e. within 14 days from provision of service [Rule 5 of Point of Taxation Rules, 2011].

This provision does not apply to ‘continuous supply of service.

Invoice received earlier but payment received after the service became taxable - The rule does not provide for a situation where service has been provided before the service became taxable and invoice has also been issued but payment is received after the service became taxable. In such case, rule 3(a) should apply and service tax should not be payable, since rule 3 applies when no other rule is applicable.

Point of taxation in case of continuous supply of service

‘Continuous supply of service’ means any service provided or to be provided for a period exceeding three months [Rule 2(c) of Point of Taxation Rules, 2011].

Following services have been notified as “continuous supply of services” in terms of clause 2(c) of the rules vide notification No. 28/ST-2011 dated 01.04.2011:

(a) Telecommunication service [65(105)(zzzx)]

(b) Commercial or industrial construction [65(105)(zzq)]

(c) Construction of residential complex [65(105)(zzzh)]

(d) Internet Telecommunication Service [65(105)(zzzu)]

(e) Works contract service [65(105)(zzzza)]

These services will constitute “continuous supply of services” irrespective of the period for which they are provided or agreed to be provided. Other services will be considered continuous supply only if they are provided or agreed to be provided continuously for a period exceeding three months – para 6 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011.

These would normally cover services like renting of premises, insurance, security services, supply of tangible goods for use service etc.

Date of completion of an event in terms of contract is date of completion of provision of service - Where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the service receiver to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service – Explanation 1 to Rule 6 of Point of Taxation Rules, 2011.

For example, in case of construction contract, if the contract provides for payment of certain amounts at each stage like plinth, slab, plaster, finishing etc., each such event will be date of completion of provision of service of (that part of) service.

Date of invoice is normally ‘point of taxation’ - As per Rule 6(a) of Point of Taxation Rules, 2011, time when invoice for the service provided or to be provided is issued, shall be ‘point of taxation’.

As per Rule 4A of Service Tax Rules, every person providing taxable service is required to issue invoice within fourteen days from the date of completion of service or receipt of any payments towards the value of such taxable service, whichever is earlier.

Thus, issue of invoice within 14 days of completion of service or receipt of advance, whichever earlier, is a statutory requirement.

In case of continuous service, date of completion of each ‘event’ is completion of provision of (that part of) service.

It is possible that despite the statutory provision, an assessee may not issue of invoice within 14 days, to defer his tax liability. To ensure this does not happen, proviso to rule 6(a) of Point of Taxation Rules, 2011, states that if invoice is not issued within 14 days of completion of provision of the service, date of completion of service shall be ‘point of taxation’.

Receipt of advance before issue of invoice - If any payment (i.e. advance) is received by service provider before issue of an invoice, the date of receipt of payment will be ‘point of taxation’ to the extent of such payment [Rule 6(b) of Point of Taxation Rules, 2011]. Thus, once advance is received, service tax would become payable even if invoice was not issued.

It may be noted that even if invoice is issued within 14 days, the ‘point of taxation’ will still be date of receipt of advance. This would create difficulties where advance is received in later part of the month.

Departmental clarification - Para 5 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - Rule 6 relating to continuous supply of service has been aligned with the revised rule 3 and the date of completion of continuous service has been defined within the rule. This date shall be the date of completion of the specified event stated in the contract which obligates payment in part or whole for the contract. For example, in the case of construction services if the payments are linked to stage-by-stage completion of construction, the provision of service shall be deemed to be completed in part when each such stage of construction is completed. Moreover, it has been provided that this rule will have primacy over rules 3, 4 and 8.

Point of taxation in case of Export of Service

In case of services covered under rule 3(1) of Export of Service Rules, ‘point of taxation’ will be date on which payment is received, if payment is received within period specified by RBI.

However, if the payment for export of service is not received within the period specified by RBI, the point of taxation will be determined as if this rule i.e. rule 7 does not exist (That means ‘point of taxation’ will be determined under rule 3, 4, 5, 6 or 8 as applicable) – Rule 7(a) and first proviso to rule 7 of Point of Taxation Rules, 2011.

In such case, interest for delayed payment will be applicable, as ‘point of taxation’ will shift to much earlier date.

(Usually, RBI allows 6 months for receipt of payment but in certain cases, elongated credit terms are allowable).

In short, if service is exported as per Export of Service Rules but foreign exchange is not realised within period prescribed by RBI, service tax will become payable, since realization of payment in foreign exchange is one essential condition to treat a service as ‘Export of Service’.

Departmental clarification - Para 9 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - Export of services is exempt subject, inter alia, to the condition that the payment should be received in convertible foreign exchange. Until the payment is received, the provision of service, even if all other conditions are met, would not constitute export. In order to remove the hardship that will be caused due to accrual method, the point of taxation has been changed to the date of payment. However, if the payment is not received within the period prescribed by RBI, the point of taxation shall be determined in the absence of this rule.

Point of taxation when service tax is payable under reverse charge

In case of services like GTA, services of mutual fund agent and insurance agent, sponsorship services etc., service tax is payable by service receipt under section 68(2) of Finance Act, 1994.

In case of such services, the point of taxation shall be the date on which payment is made to service provider, if the payment for such service is not made within six months from date of invoice.

However, if the payment for such service is not made within six months from date of invoice, the point of taxation will be determined as if this rule i.e. rule 7 does not exist (That means ‘point of taxation’ will be determined under rule 3, 4, 5, 6 or 8 as applicable) – Rule 7(b) and second proviso to rule of Point of Taxation Rules, 2011.

In such case, interest for delayed payment will be applicable, as ‘point of taxation’ will shift to much earlier date.

Departmental clarification - Para 10 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - In the case of services where the recipient is obligated to pay service tax under rule 2 (1)(d) of Service Tax Rules i.e. on reverse charge basis, the point of taxation shall be the date of making the payment. However, if the payment is not made within six months of the date of invoice, the point of taxation shall be determined as if this rule does not exist.

Professionals to pay service tax on receipt basis even after 1st July 2011

Government has shown mercy to professionals. Professional i.e. Practicing CA/CWA/CS, Advocates, Architects, Consulting Engineer, Interior Decorators, Scientist and Technocrat will continue to pay service tax receipt basis instead of accrual basis even after 1-7-2011 - rule 7(c) of Point of Taxation Rules, as inserted w.e.f. 1-4-2011 (Consulting Engineer added w.e.f. 1-4-2011).

For some unknown reasons, Management Consultants are not eligible for this concession.

Departmental clarification - Para 8(iii) of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - Individuals, proprietorships and partnership firms providing specified services (Chartered Accountant, Cost Accountant, Company Secretary, Architect, Interior Decorator, Legal, Scientific and Technical consultancy services). The benefit shall not be available in case of any other service also supplied by the person concerned along with the specified services.

Point of taxation in case of ‘associated enterprises’ where person providing service is outside India

In case of ‘associated enterprises’, where the person providing the service is outside India, the point of taxation shall be the date of credit in the books of account of the person receiving the service or date of making the payment, whichever is earlier – Third proviso to rule 7 of Point of Taxation Rules, 2011.

Departmental clarification - Para 10 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - In the case of associated enterprises, when the service provider is outside India, the point of taxation will be the earlier of the date of credit in the books of account of the service receiver or the date of making the payment.

In case the associated enterprise in situated in India, no separate provision has been made as normal rules of Point of Taxation will apply - Para 7 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011

Point of taxation in case of Intellectual Property Right (IPR) services

In respect of royalties and payments pertaining to copyrights, trademarks, designs or patents, where the whole amount is not ascertainable at the time of provision of service, service shall be deemed to have been provided each time payment in respect of such service is received or invoice is issued by service provider, whichever is earlier [Rule 8 of Point of Taxation Rules, 2011].

Payment of service tax on accrual basis made optional upto 30th June

Point of Taxation Rules, 2011 have been amended to provide that payment of service tax on accrual basis instead of receipt basis is optional upto 30-6-2011. Thus, in case of services provided upto 30-6-2011, assessee can opt to pay service tax on receipt basis instead of accrual basis or may decide to pay on accrual basis from 1st April 2011 itself – Rule 9 of Point of Taxation Rules, 2011.

When Credit Note can be issued by service provider

It is provided that if a service provider issues credit note to service receiver for (a) not providing service partly or fully for any reason or (b) where amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract, assessee (service provider) can refund the amount to the service receiver with service tax or issue a Credit Note to service receiver.

Then assessee can himself adjust the excess service tax paid by him against his service tax liability for the subsequent period [Rule 6(3) of Service Tax Rules amended w.e.f. 1-4-2011].

However, such adjustment is not permissible in case of bad debts or giving simple discount/reduction in charges.

Note that ‘contract’ need not be writing. Even verbal agreement can be a legally binding ‘contract’

Departmental clarification - Para 11(ii) of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - If the amount of invoice is renegotiated due to deficient provision or in any other way changed in terms of conditions of the contract (e.g. contingent on the happening or non-happening of a future event), the tax will be payable on the revised amount provided the excess amount is either refunded or a suitable credit note is issued to the service receiver. However, concession is not available for bad debts.

Credit can be taken immediately on receipt of Invoice

Rule 4(7) of Cenvat Credit Rules has been amended to provide that Cenvat Credit of service tax be taken immediately on receipt of invoices issued on or after 1-4-2011, except where service tax is payable under reverse charge method. However, if payment is not made to service provider within three months of date of invoice, the credit taken will have to be reversed. The credit can be taken again after payment is made to service provider.

Provision has also been made to issue Supplementary invoice, bill or challan by inserting rule 9(bb) to Cenvat Credit Rules.

Departmental clarification - Para 12 of TRU (II) MF(DR) letter F.No.341/34/2010-TRU dated 31-3-2011 clarifies as follows - The credit of input services under rule 4(7) of the Cenvat Credit Rules has also been liberalized vide notification No. 13/2011-CE (NT) dated 31.03.2011 and the same shall be available on receipt of invoice (except in cases of reverse charge) as long as the payment is made within three months. Even specified persons required to pay tax on cash basis will be able to avail credit on receipt of invoice. Suitable changes have also been made for reversal of credit or payment when the value of service is renegotiated or altered for any reason by refund or issue of a credit note by the service provider. Amendment has also been made in Rule 9 of Cenvat Credit Rules, 2004 by allowing credit on supplementary invoice, except in non-bonafide cases, which may become necessary in certain situations e.g. where the point of tax is the date of payment while the invoice had already been issued e.g. rule 4(b)(i) of Point of Taxation Rules.

Issues arising out of the Rules

The Point of Taxation Rules have been issued to align present provisions of Vat and excise duty, in view of proposed GST. In case of State Vat and Central Excise, the tax is payable on accrual basis and not on receipt basis. When GST comes, provision of payment of tax on receipt basis in case of services cannot co-exist with provision of payment of tax on accrual basis under Vat and excise duty.

However, under central excise and Vat, tax is not payable on receipt of advance. Excise duty is payable only when goods are cleared and Vat is payable only when sale is made, while in case of services, tax is payable when advance is received, even if service is provided later. This distinction should also disappear it the intention is to move towards GST regime.

Issue of invoice is really only a procedural part. Making it as a ‘taxable event’ is not technically correct, as it would be penalising for a technical lapse. In some cases like construction of residential complex, ‘invoice’ is not issued

In case of services, discounts, deductions from invoices raised and bad debts are common. However, no provision has been made for such deductions, except in case of services provided by professionals.

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C A S.S.Agarwal, M.Com.,LL.B,

C A S.S.Agarwal, M.Com.,LL.B, (Expert)
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30 April 2012 What an elaborate reply you can understand every thing you want to know as he has provided you the entire procedure by importing from the very known places to the expert. Go through it and you will be able to do what every you want.

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