Reverse Charge in Service tax
8.1 Reverse Charge (Tax Shift)
¨ Normally, service tax is payable by person providing the service.
¨ Section 68(2) makes provision for reverse charge i.e. service Receiver is liable to pay tax.
¨ Provision can be made that part of tax will be paid by service receiver and part by service provider.
8.2 Issues relating to reverse charge
¨ Point of Taxation : Date on which payment is made to service provider. However, if payment is not made to service provider within 6 months, service tax is anyway payable. Interest is also payable.
¨ Service tax as to be paid by cash only i.e. GAR-7 challan.
.. Service Receiver has to register himself in service tax and have to file service tax return on prescribed manner irrespective of exemption limit
¨ The small service provider exemption of ` 10 lakh not available when tax is payable under reverse charge.
¨ Tax should be paid under service tax registration number of service receiver and included in his return as he is liable to pay service tax.
¨ Exception is that when service provider is outside India is Associated Enterprise (group company with at least 25% common interest), the service receiver is liable to pay service tax as soon as the account of service provider is credited in books of account of service receiver.
8.3 Billing by service provider
¨ Service provider should charge only his part of service tax
¨ Service receiver to pay service tax of his part by GAR-7 challan
¨ Service receiver liable for only his part and not entire amount, even if service provider does not charge his portion of service tax.
¨ A statutory liability cannot be shifted by mutual agreement. If statutory liability is of service receiver, he alone is liable..
8.6 Reverse charge in works contract service
.. What is Works Contract?
Any agreement for execution of works relating to civil works, construction, manufacture,
processing, fabrication, erection, Installation, fitting out, improvement, modification, repair or
commissioning of any movable or immovable property for cash/deferred payment or other
valuable consideration is a works contract
¨ 50% tax by service receiver if
- service receiver is business entity incorporated as body corporate.
- AND service provider is individual, HUF, proprietary or partnership firm or AOP.
- The service receiver liable for 50% even if service provider does not charge service tax.
¨ Ex; Construction, Job work with material, AMC covered under works contract.
8.7 Reverse charge in case of manpower supply
¨ 75% tax by service receiver
- If service provider of manpower supply is individual, HUF, proprietary or partnership firm or AOP
- AND service receiver is company or business entity incorporated as body corporate. Balance 25% by service provider.
¨ Service tax payable on salary plus PF, ESI plus commission of labour contractor.
8.8 Issues relating to manpower supply service
¨ Service should be manpower supply i.e. under command of Principal Employer.
¨ “Supply of manpower” means supply of manpower, temporarily or otherwise, to another person to work under his superintendence or control.’ [Rule 2(g) of Service Tax Rules, inserted w.e.f. 1-7-2012].
¨ Security service, cleaning service, piece basis or job basis contract can be ‘manpower supply service’ only if the labour work under superintendence or control of Principal Employer.
¨ Person approaching himself and company appointing him on contract basis is not manpower supply service.
8.9 Reverse charge in renting or hire of Motor vehicle designed to carry passengers
¨ Tax on 40%, if
- Service Provider should be HUF, Individual, firm
- Service receiver – Business entity registered as body corporate
- Cenvat credit should not be availed by the service provider
¨ Reverse charge when renting to a person who is not in similar line of business.
¨ If motor vehicle is taken on hire (operating lease) without driver, it is ‘transfer of right to goods’. Then it is deemed sale of goods and Vat will apply – not service tax.
8.10 Goods Transport Agency
.. Tax on 25% , only if following conditions are satisfied......
- when consignment note issued. Simple transport of goods service (without issue of consignment note) is not a GTA service.
- Service provider does not avail Cenvat Credit
- service receiver should get certificate from him that he has not availed Cenvat credit.
- Person liable to pay freight for transportation of goods, located in taxable territory, shall be the person who receives the service. if he is body corporate, factory, registered dealer under Central excise, society, cooperative society, partnership firm (registered or not).
¨ Otherwise tax on 100% value.
8.11 Support Services of Government or Local Authority
¨ Sovereign and statutory activities not subject to service tax
¨ Support services like testing, police protection, Advertisement, construction, Outsourcing type services provided by Government to business entity
¨ Business Entity liable for entire service tax
8.12 Import of Service
¨ Service tax is payable only if Place of Provision of Service is in taxable territory (i.e. India plus 200 nautical miles inside the sea minus J&K)
¨ Service provider should be outside taxable territory and service receiver should be located in taxable territory
¨ Service tax is payable on gross amount including TDS
8.13 Other services under reverse charge ( Tax on 100% value )
¨ Insurance Agent.
¨ Services of Advocate or Advocate Firms or Arbitral Tribunal to Business Entity having turnover over 10 lakhs.Then Business Entity is liable to pay entire service tax.
¨ Sponsorship by Body corporate or Partnership Firm
8.14 No reverse charge, if service provided prior to 1-7-2012
¨ In case of some services, reverse charge mechanism is applicable w.e.f. 1-7-2012 i.e. service tax is payable (partly or wholly) by service receiver..
¨ In view of section 67A (which is effective from 28-5-2012), service tax will not be payable by service receiver under reverse charge mechanism, if service was provided prior to 1-7-2012, even if payment is received later.
¨ This will be so even if invoice was issued after 1st July 2012. However, to avoid controversy, it is advisable to date invoice prior to 30-6-2012 [Note that Point of Taxation Rules cannot override provisions of section 67A].
8.15 Reverse charge provisions at a glance
The provisions are summarised below.
| Sr. No. | Descripttion of service | Service Provider | Service Receiver | Liability of service tax |
| 1 |
Services of insurance agent
[Rule 2(d)(i)(
|
Insurance Agent | Insurance Company | 100% by insurance company |
| 2 | Services of Goods Transport Agency (GTA) of goods transport | Goods Transport Agency (one who issues consignment note) | Consignor or consignee who is (a) factory, society, registered dealer of excisable goods, body corporate, partnership firm, AOP and (b) who pays or is liable to pay freight either himself or through his agent for transportation of such goods in goods carriage |
Tax payable on 25% of value if Cenvat credit has not been availed by service provider. Hence, it is necessary to obtain certificate from the service provider (GTA) that he has not availed any Cenvat credit. Otherwise, service tax will be payable on 100% of the value.
Entire tax is payable by service receiver.
Person liable to pay freight for transportation of goods, located in taxable territory, shall be the person who receives the service. If such person is located in non-taxable territory, the provider of service shall be liable to pay service tax.
|
| 3 | Sponsorship service | Any person | Any body corporate or partnership firm located in the taxable territory | Entire tax payable by service receiver. If the receiver of service is not body corporate or partnership firm or if such body corporate or partnership firm is notlocated in taxable territory, the service provider (i.e. person receiving the sponsorship money) will be liable to pay the service tax. |
| 4 | Services of Arbitral Tribunal | Arbitral Tribunal | Business Entity | Entire tax payable by service receiver |
| 5 | Legal Services of Advocate or Advocate Firms | Individual Advocate or Advocate Firms | Business Entity having turnover exceeding ` ten lakhs per annum, located in taxable territory | Entire tax payable by service receiver |
| 5A | Services of director to company (entry added w.e.f. 7-8-2012) | Director | Company | Entire tax payable by service receiver |
| 6 | Support Services by Government or Local Authority excluding renting of immovable property and services specified in clauses (i), (ii) and (iii) of Section 66 D (a) of Finance Act, 1994 (These cover postal, port, airport and railway services) | Government or Local Authority | Business Entity located in taxable territory | Entire tax payable by service receiver |
| 7 | Renting or hiring of motor vehicle designed to carry passengers to any person who is not in the similar line of business | Individual, HUF, proprietary or partnership firm, AOP located in taxable territory | Business entity registered as body corporate located in the taxable territory | Tax on 40% of value by service receiver and Nil by service provider. If the service provider intends to avail Cenvat credit, he can pay service tax on balance 60%. Thus, service receiver is liable to pay service tax only on 40% value. |
| 8 | Supply of Manpower for any purpose or security service (The words ‘or security service’ were added w.e.f. 7-8-2012 | Individual, HUF, proprietary or partnership firm, AOP located in taxable territory | Business entity registered as body corporate located in the taxable territory | Tax on 25% of value by service provider and 75%by service receiver |
| 9 | Service portion in execution of Works Contract | Individual, HUF, proprietary or partnership firm, AOP located in taxable territory | Business entity registered as body corporate located in the taxable territory | Tax on 50% of value by service provider and 50% by service receiver |
| 10 | Services received from non-taxable territory (Import of Service) | Located in non-taxable territory | Located in taxable territory | Entire tax payable by service receiver. |
8.5 Business Entity and Body Corporate
¨ In some cases, reverse charge is applicable only when service receiver is business entity registered as ‘body corporate’.
¨ “Business entity” means any person ordinarily carrying out any activity relating to industry, commerce or any other business or profession. Thus, Government, charitable organisation is not ‘business entity’.
¨ Body Corporate – Company, LLP, Cooperative Society is Body Corporate – Firm, HUF, Trust is not ‘Body Corporate’ [Society registered under Societies Act is legally not ‘body corporate’].
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