Changing of law through issuance of circulars !!!

Introduction:
Law till today on the subject of repairing and maintenance of roads and other infrastructural facilities was clear in the minds of all stake holders (barring a few Service tax commissionerates)
There was this discussion being held in many corners and some queries on this count were being raised that somehow Maintenance and/or repairing of Roads would be a taxable activity but a conclusive view came across from all those corners that no such taxing is possible because the law itself was clear enough.
This view was based on a sound principle of law which says that if a service activity is specifically excluded from the purview of taxation from one service category cannot be included in some other category unless and until specific inclusion thereof is provided for it in that section.
The Central Board of Excise and Customs (CBEC) – has now come up with a Circular No. 110/2009 dated 23.02.2009 clarifying the doubts in respect of levy of service tax on Repair/ renovation/ widening of roads.
The circular has tried to give extra-judicial meaning to 2 sections involved:
1. Commercial or industrial construction service [section 65(105) (zzq)]
2. Management, maintenance or repair service [section 65(105) (zzg)].

Legislative Background:

I. Commercial or Industrial Construction Service:
As per section 65(25b) of the Finance Act, 1994 (Act),
“Commercial or industrial construction service” means—
(a) construction of a new building or a civil structure or a part thereof; or
(b) construction of pipeline or conduit; or
(c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or
(d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit,
which is—
(i) used, or to be used, primarily for; or
(ii) occupied, or to be occupied, primarily with; or
(iii) engaged, or to be engaged, primarily in,
commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;]

As you can see, above defining section clearly spells out that all kinds of repairing, alteration, renovation, restoration or similar services provided in relation to any infrastructural facilities including roads is completely non taxable. Therefore it can be safely said that there was and still exists a specific exclusion from charging of service tax on repairing and related services in respect of roads.

II. Management, Maintenance or Repair Service:
As per section 65 (64) of the Act,
“management, maintenance or repair service means any service provided by—
(i) any person under a contract or an agreement; or
(ii) a manufacturer or any person authorised by him,
in relation to,—
(a) management of properties, whether immovable or not;
(b) maintenance or repair of properties, whether immovable or not; or
(c) maintenance or repair including reconditioning or restoration, or servicing of any goods, excluding a motor vehicle.]
[Explanation.—For the removal of doubts, it is hereby declared that for the purposes of this clause,—
(a) “goods” includes computer software;
(b) “properties” includes information technology software;]

This section puts in place a charge on Management, Maintenance or repair services in relation to all movable and immovable goods and properties. This section was first amended w.e.f. 16.06.2005 to include maintenance services in respect of immovable properties and it was further amended from 1.05.2006 to include repairing services thereon also.

Legal Importance of circular:
It is an accepted rule of law that an Act passed by the Parliament is supreme in authority and its provisions cannot be re-defined by issuance of circulars. Circulars can only by guides of law and law cannot be over-defined by these instruments. Many circulars have been struck down by courts. In case of COMMISSIONER OF SALES TAX vs. INDRA INDUSTRIES (2001) 248 ITR 338 (SC), wherein the apex court has opined that,
“A circular by tax authorities is not binding on the Courts. It is not binding on the assessee.”
Hence circulars at best are instruments in the hands of administrators to clear doubts where they exist but unfortunately these are being used to create doubts where none exist.


Defining the Circular
The circular is issued in response to clarification sought by the Nashik Commissionerate on the issue. The circular has tried to clarify 2 issues –
a. Whether management, maintenance or repairs of roads is taxable under similar service head or not.
b. Segregation of activities in relation to roads into 2 distinct heads as under:

i. Maintenance & repair activities
1. Resurfacing
2. Renovation
3. Strengthening
4. Relaying
5. Filling of potholes

ii. Construction Activities
1. Laying of a new road
2. Widening of narrow road to broader road (such as conversion of a two lane road to a four lane road)
3. Changing road surface (graveled road to metalled road/ metalled road to blacktopped/ blacktopped to concrete etc)
In simple language as per this circular all activities of management, maintenance or repairing in respect of roads will be taxable with retrospective effect atleast from 1.05.2006 if not earlier. It has tried to define what activities are classifiable as Maintenance or Repair services and what can be defined as Construction. As there is no legal standing of the circulars – the impact of it cannot be prospective in nature.
If we believe this circular to be sacrosanct than atleast from 1.05.2006 all jobs of resurfacing, renovation, strengthening, relaying or filling of potholes in respect of roads will become taxable.
This can be stretched to mean that if a road is constructed once – all relaying work done on it for as many years to come – would be a taxable activity given that the quality of surface of the road is not changed from graveled road to metalled road/ metalled road to blacktopped/ blacktopped to concrete etc.

Mistake of omission:
The circular fails to recognize one important sub-clause of section 65 (25b) of the Act.
As explained earlier, this section defines the words – “Commercial or Industrial Construction” – wherein sub-clause (d) of section 65 (25b), clearly includes all kinds of repair, alteration, renovation, restoration or similar services. Thereby meaning that repairs is also a sort of Construction.
The definition further has an the exclusion clause which says that,
“but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;]”
The words “Such services” – refer to sub-clause 65 (25b) (a) to (d) – which means that all repairing, renovation etc jobs in relation to roads are NOT TAXABLE at all.
Why was this clause not referred before issuance of the impugned circular is a question that only the Board can answer but according to me it is clear that they have not considered this sub-clause and this mistake of omission would give birth to serious litigation issues for the infrastructure sector as a whole.

Conclusion:
As far as repairing jobs of roads etc is concerned there was no iota of doubt in the legislative intent because Infrastructure is the need of the day and upkeep of the infrastructural facilities is a core area in which the government is working hard, but unfortunately this circular is issued to undo all the good intentions of law.
It is not as if the law is silent on the issue, on the contrary the law is crystal clear and specifically excludes all kinds of repair jobs done in respect of all infrastructural facilities like roads, airports, railways, transport terminals, bridges, tunnels and dams as explained above.
This circular must be withdrawn with immediate effect and all efforts must be taken by all stake holders to force the Central Government into withdrawing it. The circular in any case according to me is Void-ab-initio and will not stand the scrutiny of Tribunals and courts in the long run but till that happens it would have done the mischief it is intended to do. The litigation creating potential of this circular is immense and immediate.
This circular would proverbially open a Pandora’s box for the maintenance and repairing of infrastructural facilities sector as a whole, because the logic of this circular if accepted would mean that similar services in relation to infrastructural facilities other that Roads – like Airports, tunnels dams etc will also be taxable and that too retrospectively.
This Circular has all the right ingredients to do all the wrong things.

Nitesh Jain
N.J. Jain & Associates
Chartered Accountants

FEAR - Now i understand what this word means !!!

What do terrorists want - they want to instill fear in the masses - their target audience is not the politician sluts but the ordinary public - and for the first time and after so many tragedies - i have started fearing them. Not because they have the weapons but because we do not have the will to fight those weapons.

We are so 'high on spirit' people that we forget that we need to respond not in the same way but in a decent but powerful way - I AM AFRAID BECAUSE WE DO NOT RESPOND - we only talk of responding - of taking suitable action but the promised action is never taken.

The NSG took a good 10 hours to reach the spot of terror - Why ????? who is answerable - why did the police handling the situation carrying only single shot rifles in hand - why werent they wearing bullet proof jackets. there are many such questions and i know for sure that these f...... su........ politicians will have a unique way of dodging these questions because they DO NOT CARE. I hope they come to realise what fear is - many say this - that had some politicians died in any of the terror attacks or taken hostage - then we would have got some concrete actions. But no one from thier class ever dies in these attacks - they live so that we can die. Back to the NSG - the attacks started at 9.15 pm and the NSG started its action at about 8 next morning - i am told that they were informed at 12.00 in the night to move - they were kept waiting at the airport for 2 to 3 hours for a plane to fly them down - then at the mumbai airport they were kept waiting for another 1 hour because some fool had not called in for a bus for them. If this is the standard of planning in India - God save us.

Next question is that more terror strikes have taken place in Mumbai then anywhere else - then why is the NSG not having a permanent base in mumbai. Will any politician of the highest rank - may be the PM or the Home Minister or defence minister asnwer these questions. I will ask question even in this hour of tragedy because some thing grave has happenned and it is repeating itself time and again and our governers keep filling TV studious creating a farce of discussions.

My suggestions for combating terror because i do not want to stop at taking jibes at the political class but also give some ideas :

1. Have united, robust and sustainable policy to cambat terror
2. Give the ropes of this policy (implementation) to an upright and Young officer having a good head on his shoulder (mind u not a beaurocrat) to run it
3. Give all the resources he wants - make that organisation the single window for combating terror - (if we can have a single window for foreign direct investment then why not one agency to combat terror)
4. Let this organisation have permanent bases in all major cities in India.
5. Give them full political backing and keep them immuned from the communal politics.
6. Have meritocracy as its sole guiding force. There should be no interference in their work.
7. Keep it out from the hands of politician and buearocrat - have an autonomous agency like the Election commission or TRAI to look after its affair - the board should have emminent experts from the relevant fields.
8. The agency should have its own inteligence gathering capabilities - the latest gadgets should be available to them. May be it should have its own fully equipped research and development wing with a 5000 crores budget.
9. They should be backed by a democratic but powerful law against terror.
10. Special fast track terror courts should be run for terror cases alone in all major cities. Judges delaying orders must be punished immidiately. The organisation must be free to take good legal advice from the most emminent lawyers for fighting there side of the case.
11. Once a death sentence is cleared by the Supreme court than the guilty must be hanged immidiately and the political class should not be allowed to play petty politicis over this.
12. The Parliament must announce a zero tolerance policy against terror and no government must be allowed to negotiate with hijackers or such hostage takers even if it means endangering the lives of innocent citizens.
13. They must be allowed to take action which is deemed fit by the agency in foreign land - offcource it may be covert or may be overt. Stop this nonsence that we will not cross the border - this crap will not be taken now.
14. All diplomatic help must be provided to this organisation.
15. They will report directly to either the PM or the Cabinet Committee on Internal Security.
16. This organisation must have Public relations wing which gives credible information to the media.
17. At the time of terror all the agencies of the state must come its wings - in other words they will take orders from one organisation only.
18. Joint mock exercises must be conducted with identical forces of major world powers like USA, UK, France, Israel and others to upgrade the training of our men.
19. Personnel working in this organisation must be given good pay structure with good Insurance policies.
20. The government must announce a consistent and uniform policy for awarding the ex-gratia amounts to the deceased or injured in terror attacks. The system must be responsive enough to complete the process in a month of a tragedy.
21. All major facilities of national importance must be charted out - and detailed plans of action in case of terror attacks must be formulated.

I have many such suggestions and i believe there better equipped people out there who suggest much better plans but the issue is that who will bell the cat.

I hope some one in the corridors of power - in the silence of his bedroom - has a tear in his eye - thinks hard about this menance not with eye on the coming press conference and how he will manipulate the vocabulary so that he come unhurt. A thought which guides him to do something drastic about the decease called terrorist. I hope such doctor comes forward and takes the call of his duty.

No one from my family has even come close to such a tragedy and i hope no ones family ever comes close to such events but just hopes wont do any good - this 'spirit of mumbai' cliche will not help us anymore nor has it helped in the past. So get up guys and do something about this or else just keep watching Television and political debates because thats what we are good at - Mera bharat mahan - 100 me se 80 be.............. -

Nitesh Jain

Chartered Accountant

nitesh@niteshjain.co.in

Rent-a-Cab Scheme Operators’ Service – Taxable or Not?????

Introduction
Service tax on services of providing cabs on rent was first made taxable wide an amendment in the Finance Act, 1997 (taxable w.e.f. – 16.07.1997) wherein the service providers who were license holders under the Rent-a-Cab Scheme, 1989 framed by the Central Government were made taxable – practically not many of these service providers were holding such licenses hence the service did not raise much revenue for the Government. Looking at this the government exempted the whole service from tax w.e.f. 28.02.1999. It remained exempted till 1.04.2004 when it was reintroduced dispensing the requirement of holding a license under the Rent-a-Cab Scheme, 1989 thereby throwing the tax net wide open.
Recent case laws have raised major questions on the applicability of this law to a large section of the service providers. This article deals with this very aspect and tries to find answer to the query of many such service providers. Before going into the merits and demerits of the interpretation of this law, let’s see what is the real modus operandi of the majority of the service providers.

Rent a Cab Business Models
Basically there are three service models which are being followed by the industry at large:
1. Providing cars, maxi-cabs and other small to medium vehicles to the customers on a monthly hiring basis – where the driver & fuel is provided by the service provider if asked for otherwise he charges for the vehicle and rest of the expenses thereon are to be borne by the customer himself.
2. The customer gets the vehicle on per kilometer rate basis – where the driver as well as the fuel is provided by the service provider and customer has to pay for as much as he travels subject some minimum charges.
3. The service provider has his car pools at many places – the customer goes there – chooses a car – pays the refundable deposit as well as the per day or per hour rate for the chosen car and drives the car by himself. In this model the customer himself is responsible for driving the vehicle as well as fuel costs have to borne by him. After his use is over, he parks the car at any company designated parking areas and walks away after getting a refund of the deposit paid earlier.

From the above 3 models the first 2 are prevalent in India whereas the third model is yet to start in a major way.
First model is used by the corporates as well as firms who contract vehicles as per their needs on a monthly rental basis whereas the second model is more prevalent in the tourist industry and for individual customers. Lets examine the existing law covering taxation on this industry

Existing Law
Taxable service in relation to renting of cabs has been defined under section 65 (105) (o) of the Act as follows:
“Taxable service means service provided or to be provided to any person, by a rent-a-cab scheme operator in relation to the renting of a cab;”

Main ingredients that come out from the above section to make a transaction taxable are:
a. The service is provided to any person;
b. The service is provided by a rent-a-cab scheme operator
c. The service is provided in relation to renting of cab

Meaning of the above conditions:
1. The service recipient can be ANY PERSON whatsoever.
2. The service provider has to be a rent a scheme operator and section Section 65 (91) of the Act, defines him as :
“rent-a-cab scheme operator” means any person engaged in the business of renting of cabs;”
Therefore any person who in the normal course does a business of renting of cabs will only be taxable under this section and not everybody who provides vehicles on rent.

3. Third condition says that the service has to be in relation to RENTING of cabs.
This condition is proving to be a major bone of contention for the service tax department whereby the honorable tribunals have interpreted it in way which makes the whole section redundant as far as one chunk of the service providers are concerned.

Fact & Law
As discussed above there are basically 2 models of hiring of small vehicles prevalent in India wherein one is outright renting of cars and the second is piecemeal hiring.
Both the models satisfy the first 2 conditions out of the 3 discussed above. The last condition is where the judiciary has given conflicting views. The definition says that the service must be in relation to RENTING of vehicles.
In the first business model where the vehicle is given on monthly rental basis – it can be said that the car is rented but in the second model where the car is given on kilometer basis the vehicle can at best be termed as hired. Hence the difference is of Renting vs. Hiring.

The American Heritage Dictionary defines these terms as under:
Renting: means payment, usually of an amount fixed by contract, made by a tenant at specific intervals in return for the use of a facility, equipment or service provided by another; to grant temporary occupancy of use of (one’s own property or a service) in return for regular payments.

Hiring: means to grant the services of or temporary use of for a fee.

As can be seen from above definitions that there is a distinct difference between the two words hence the taxability of transaction needs to be understood in the light of these differences.

Similar question was raised in the case of Express Tours & Travels (P.) Ltd. v. CCE, [2005] 1 STT 305 (MUM. - CESTAT) – where the honorable Tribunal opined and I quote,

“I do not see much of a difference in the words Hire and Rent in the context in which they are used. The Rent-a-Cab Scheme would have consistently used the word ‘Rent’, ‘Rental Charges’, etc., instead of ‘hire’, ‘hire charges’ if there is such a big difference between the two expressions. An ‘Yellow & Black’ motor taxi is engaged by a person whereas he hires a tourist taxi much more formally for a longer duration. The Government’s intention is to tax the providers of a service, which involves, hiring/renting of a cab formally for a longer duration.”

It must be said that according to the facts of the case stated above the appellant failed to put across sufficient evidence to prove that it was hiring the vehicles and not renting them hence the tribunal was not in a position to appreciate the difference between the two transactions.
In other cases where enough evidences were put before the honorable Tribunals they gave some contrary views which have confused the issue no bounds.

Judicial views:
One view
1. Shiva Travels v. CCE – Meerut I [2007] 7 STT 75 (NEW DELHI – CESTAT)

The tribunal said that, “if motor cabs are given on rent along with drivers, the nature of service, prima facie, would remain the same as that of rent-a-cab scheme operator."

The Tribunal thus refused to entertain the difference between hiring and renting and considered both the activities as the same which makes all business models taxable under this section. Similar view was taken in the case of Anil Kumar Agnihotri v. Commissioner of Central Excise, Kanpur [2007] 11 STT 59 (NEW DELHI - CESTAT).

The other view

2. Kuldip Singh Gill v. Commissioner of Central Excise [2005] 2 STT 34 (NEW DELHI - CESTAT)
This case has proved to be a landmark where many tribunals have now come across and agreed to the views of the New Delhi CESTAT.

“It is clear from the contract that the Oil Corporation was not renting out any stipulated number of vehicles; but was making payment for operating trips to various places. The vehicle in question continued to be with the operator, including during the time of its operations for IOC. As and when the trips were required to be undertaken, the operator was asked to carry out the same and he was paid per trip depending upon distance, time etc. as per the rate sheet. The important thing to be noticed is that the cabs were not leased out for any interval of time, for use by the Oil Corporation, according to its discretion. That service tax under the heading does not cover all manner of transport or vehicle hire services is clear from the wording of the heading itself. The levy has been defined as “any service provided...... by a rent-a-cab scheme operator in relation to renting of a cab”. In the present case, there was no renting of cabs. Instead, transport service was provided. In view of this, service tax demand on the appellant is not sustainable."

The above view has been followed in the following similar cases

a. Dharmabhakti Travels v. Commissioner of Central Excise, Rajkot [2007] 9 STT 332 (AHD. - CESTAT)
b. R.S. Travels v. Commissioner of Central Excise, Meerut [2008] 15 STT 437 (NEW DELHI - CESTAT)

In this case the tribunal has said that the logic of Express Tours & Travels (P.) Ltd. v. CCE case cannot be accepted in all cases because in that case the appellant had not produced any evidence to suggest that the cars were being actually hired by the customers and not rented.

c. P. Sugumar v. Commissioner of Central Excise, Pondicherry - [2008] 13 STT 72 (CHENNAI - CESTAT) where the tribunal in its order said,

“After going through the records of the case and considering the submissions by both sides, I find that apparently, when the vehicles are not provided to a person on rental basis for any continuous period of time and are only made available for making journeys as and when required, will not come under the ‘rent-a-cab’ scheme. This is also the ratio of the two decisions of the Tribunal cited by the Ld. Consultant. The appellants have made prima facie case against the demand."

Hence the whole premise for taxing of service providers who provide vehicles on kilometer basis and where the driver belongs to them have been declared non taxable by these tribunals across India. This model of business is the most prevalent in India hence these pronouncements would bring a big cheer to these service providers.

Conclusion: The Way forward:

In the Budget 2008 the Finance Minister introduced a new service called the Supply of Tangible Goods whereby he proposed to tax those transaction where rights to use goods were transferred without transferring the effective control and possession. If we again look at the transaction where the vehicle is given to a customer on kilometer basis and assume that the same is not taxable under the Rent-a-Cab services (as the tribunals have suggested) than also from 11.05.2008 the said transaction would become taxable under the new category.

I do accept the principal that what is expressly not taxable under one head cannot purported to be made taxable under other head but the fact remains that if a transaction is being classified as non taxable due to judicial review and on an argument that the earlier section does not in any way cover those kinds of transactions than it would be hard to argue that the principal discussed above has been violated.

Secondly under the Rent-a-Cab scheme service providers enjoy a hefty 60% abatement as per notification no. 1/2006 which would not be available if the same service is made taxable in the new head.

Hence it would be futile for people to now fight for classification from now onwards – but the above service of Supply of Tangible Goods has become taxable only w.e.f. 11.05.2008 hence all service providers who have cases pending at any stage of adjudication can take help of the above cited cases and bring permanent relief for them. The situation will only change if any of the above cases are reversed by a higher court like the High Court or Supreme Court but till then we can take support of the above case laws and find some robust solution to the pending cases.

Nitesh Jain
www.niteshjain.co.in
(Mob.) 9824182629

Attachment of property under service tax

Introduction:
The soft culture of service tax law is now being demolished and a new harsher face of the taxmen is coming forward.

Notification 30/2008 issued on 1.07.2008 has activated the section 73C of the Finance Act, 1994 whereby attachment of movable as well as immovable property can be undertaken by the authorities. I agree that penal sections are needed in any taxation law but such sections need to be and feel democratic and follow the path of natural justice and must not only smack of being democratic.

The history:
Section 73 C of the Finance Act, 1994 which was introduced by Mr. Chidambram (who else) in 2006 budget whereby he had empowered the tax authorities to attach the properties if required but rules of procedure for the same were not prescribed till now, which he has done - should we suspect that to meet the revenue targets and thereby contain the deficit he is becoming desperate.

The scheme
In the newly introduced notification the power of attachment is eventually given to the highest administrative authority - the Chief Commissioner of central excise who will be sent a proposal by the AC or DC alongwith all details. The CCE will give a hearing to the concerned assessee and if the assessee does not respond within 15 days or if the response does not satisfy the CCE his property is due to be attached.

Shockingly the timing of the beginning the attachment proceedings is what is mind boggling - the attachment procedure can begin as soon as a Show cause notice (SCN) u/s. 73 or 73A are issued. Section 73 in short stands for Wilful suppression, fraud etc and thereby not paying service tax and section 73A deals with unjust enrichment. So even if hearings after the SCN are pending (which hilariously in some cases are pending since 2005) still the authorities can go ahead and attache the properties.

What can be Attached
Many assessee's in such situations ask WHAT CANNOT BE ATTACHED - i will answer that in a moment.

• The attachment can be of Movable as well as immovable property of the assessee in default.
• The authorities can attache only that much property which covers the Service tax demanded. It does not call for attachment covering the interest, Penalty etc.
• First the movable property like Cars, Investment etc will be liable to be attached and if that is not sufficient to cover the service tax portion that ONLY the immovable property will be attached.
• The personal property of the PROPRIETORS, PARTNERS AND DIRECTORS shall NOT be attached. (How on earth is personal property of proprietor different from his proprietary concern is hard to understand - the writers of law are people from mars it seems)

Period of Attachment

The Attachment will be enforceable only upto 6 months from the date of the service of the initial order of attachment. The CCE may for reasons to be recorded in writing extend the attachment further but the total period of extension shall not exceed 2 years. Hence the total attachment period cannot in any circumstances exceed 2 years and 6 months.

Conclusion:

Since the days of the introduction of service tax till 10.09.2004 (the date when the first budget of Mr. Chidambram came in to effect) - we consultants found it hard to find clients as they said that Service tax is very easy and can be handled by our internal staff - Sir those days are now gone.......sadly the earning hand of government is unfortunately being given teeth where they are not required. I sincerely hope it dawns on them that such rules must be left unissued.

Nitesh Jain

www.niteshjain.co.in

Implication of new service category – Supply of tangible goods – on the Transport Industry.

Introduction

The Budget 2008 was introduced on 29.02.2008 wherein certain new services were proposed to be brought under the service tax net. This was a customary step taken by the Finance Minister (FM) as is done every year.

The experts and the common public at large has now come to understand very well that the devil of the budget is in the fine print especially in case of budgets drafted by Mr. Chidambaram.

This year there has been one such aberration which in my opinion can become a real problem for the transport industry as a whole, it is in the case of introduction of new section 65 (105) (zzzzj) in the Finance Act, 1994 wherein the services provided in relation to Supply of tangible goods by any person to any other person have been made taxable with effect from 16.05.2008.

Brief understanding of the new section ?

• The section thus reads as follows:
  
  Taxable Service means services provided or to be provided:
  
  “to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances;”;
  
  From the above section there are 3 ingredients which come to notice:
• The service essentially has to be in relation to supply of tangible GOODS to any person by any other person;
• there must not be any transfer of right of possession of the goods from the service provider to the service recipient;
• there must not be any transfer of effective control of the goods from the service provider to the service recipient.
  
  Hence if the above 3 criteria’s are fulfilled in a commercial transaction than the same would be liable to service tax from 16.05.2008.
  
  Lets dissect the said section further by exploring the meaning of important words used therein:
  
  TANGIBLE GOODS:
  
  Meaning of tangible in law “is the attribute of being detectable with the senses”.
  
  Goods has not been specifically defined in the Finance Act, 1994 but as per section 65 (50) thereof the meaning as assigned to it in section 2 (7) of the Sale of Goods Act, 1930 shall be taken. Goods there have been defined as under:
  
  "goods" means every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;
  
  Therefore all things which are movable except money and actionable claims can be categorized to be GOODS.
  
  In the same line one can safely conclude that TRUCKS are both – tangible and goods.
  
  
  RIGHT OF POSSESSION AND CONTROL:
  
  In general practice Possession has been the meaning - “exclusive practical control of a thing, in the context of the legal implications of that control”
  
  Similarly Control can be taken to mean “the power to influence people’s behaviour or the course of events”
  
  Summarization of the whole meaning and where it leads us:
  
  It can be clearly understood from the above discussion that all kinds of supply/lease/renting of goods which also include machinery, appliances and equipments FOR USE will be taxable from 16.05.2008 given that the service provider does not transfer the right of possession and effective control to the service recipient.
  
  
  Lets understand the same through an example:
  
  A company is providing computers on rental basis to its clients for a period of 6 months for a consideration of Rs. 1500/- per computer per month. Here the company has supplied/provided computers on rent and computers are Goods but as can be noticed that the owner of computers has also parted with the right of possession and effective control in favour of the user because the user will having unchecked – unhindered possession of the computers. So the above transaction satisfies only 1 criteria out of the 3 mentioned above and therefore the same would NOT be liable to service tax.
  
  But imagine in the same transaction if the computers are supplied alongwith manpower to help the user use them and has stipulated in the contract that no one other than his personnel would use those computers – in other words the owner company is providing computers as well as manpower to operate under one single contract than in that case it can be safely said that all the three criterias are fulfilled and the transaction shall become taxable from 16.05.2008.
  
  
  Service tax Vs. VAT
  
  The Board has come out with any internal circular/letter F.No. 341/1/2008 dated 29.02.2008 which is issued to its rank and file wherein it has tried to define the differential nexus between supply of goods in the case of VAT (Sales Tax) and service tax.
  
  In paragraph 4.4.1 thereof the Board has said,
  
  4.4.1. Transfer of right to use any goods is leviable to sales tax/VAT as deemed sale of goods [Article 366 (29A) (d) of the Constitution of India]. Transfer of right to use involves transfer of both possession and control of the goods to the user of the goods.
  
  4.4.2 Excavators, wheel loaders, dump trucks, crawler carriers, compaction equipment, cranes etc., ………………… are supplied for use, with no legal right of possession and effective control. Transaction of allowing another person to use the goods, without giving legal right of possession and effective control, not being treated as sale of goods, is treated as service.
  
  4.4.3 Proposal is to levy service tax on such services provided in relation to supply of tangible goods, including machinery, equipment and appliances, for use, with no legal right of possession or effective control. Supply of tangible goods for use and leviable to VAT/sales tax as deemed sale of goods, is not covered under the scope of proposed service. Whether a transaction involves transfer of possession and control is a question of facts and is to be decided based on the terms of the contract and other material facts. This could be ascertainable from the fact whether VAT is payable or paid.
  
  The above words coming from the Board itself can be termed as a good definition of what is taxable and what is not and the premises on which each transaction needs to be evaluated.
  
  The last line in the board circular is very important because it concludes by saying that whether a transaction is taxable or not can be evaluated by considering the facts that the assessee in question is paying VAT/sales tax on the value of the transaction or not, if he is not paying VAT than in that case he ought to be paying Service tax.
  
  
  Applicability to Truck owners
  
  After discussing the provisions in their entirety I will now come to the main reason for writing this article. It relates to the applicability of the above discussed section to the transactions entered into by the transport industry as a whole. It would be prudent to note that the modus operandi discussed hereunder is followed by not less than 60% of the industry. It makes a small thing big when compared with the humongous size this industry is and its direct relation with the inflation cycle of the Indian Economy as a whole.
  
  Modus Operandi of transport industry:
  
  Lets take a hypothetically situation to understand the way the transport industry works in India:
  
  A Company XYZ wants to send some goods from Ahmedabad to Bombay and hence contacts a Booking agent (BA) to help him do so. The BA in turn contacts a Truck Owner (TO) to send him a truck with a driver and cleaner for the said journey.
  
  The Truck owner asks for Rs. 10000/- from the BA and the BA in turn asks for Rs. 11000/- from the XYZ company. The consignment note in the above example will issued by the BA in his own name. The XYZ company pays the freight to the BA and also deposits Service tax @ 3.09 % of Rs. 11000/- to the Government under the GTA head. So far as the transaction between XYZ and BA is concerned the same categorically comes under the GTA head and it suffers taxation also. But the transaction between TO and BA was not subjected to tax until 16.05.2008.
  
  Whether the transaction between TO and BA fulfil the 3 conditions mentioned above:
  
  1. Supply of goods: The truck owner supplies truck to the BA and trucks are tangible goods.
  2. Right of Possession: The TO provides the truck alongwith his driver and cleaner and hence it can be said that the right of possession is not parted with.
  3. Right of effective control: The truck is provided for a pre-decided journey which is from Ahmedabad to Mumbai and the BA is not given the right to change the same at any cost and if he does so than the driver of the truck can and will refuse to do so unless the TO confirms the changes to him, hence the effective control is also not parted with.
  
  So all the three conditions/criteria are being met.
  
  So the million dollar question that will arise is that, should we conclude that the transaction between the TO and the BA as reflected above will be taxable under section 65 (105) (zzzzj) ibid.
  
  Conclusion
  
  I think the interpretation done above is perfectly in order but in the same vein I also think that it is and cannot be the intention of the Government of India and the Parliament to tax the transport industry in such a manner.
  
  My belief stems from the following 2 reasons:
  
• The whole transaction between the TO – BA and the customer will be chargeable to a phenomenal 15.45% tax (12.36% on the first leg + 3.09% on the second leg) because in another change brought in by notifications 10/2008 of Central Excise, 12/2008 and 13/2008 of service tax whereby the BA agent will not be able to avail and utilize the credit of the service tax charged by the TO to the BA.
• The inflationary cost of such a move would be immense and irreparable.
  
  Hence the devil that has somehow crept into the newly introduced law must be pulled out at any cost immediately either by way of an amendment or by way of a notification under section 93 of the Finance Act, 1994. I would not call for a clarification by way of a circular or a trade notice, because in the past these documents have proved to be worthless in honourable Tribunals, Advance Rulings and Courts of law. Recent advance ruling in case of builders/developers/promoters is a case in point.
  
  
  Nitesh Jain
  Chartered Accountant
  Mob. No. 9824182629
  Email ID – Nitesh101@yahoo.com
  

Service Tax basics

I hope this reaches a wide variety of intended audience.

Service Tax in India is of a recent origin (not as recent but not as old either because in taxation parlance the ord recent has a different conotation) - it was introduced in 1994 by the then Finance Minister Mr. Manmohan Singh (todays PM) with an announcement that it would be the most user friendly tax that India has ever seen. He and his successors followed this path since 2004 when the things started changing and complication were being brought in every sphere - be it the haywire definitions of what is taxable and what is not or the penal clauses.

As litigations started pouring in the people are now hearing the music loud and clear that in India what is meant by tax payer friendly is at the end not that friendly at all.

Hence in this background i thought i should start this blog. My intentions are fair and i want to impart as much as i know and if i dont know it will be my endeavour to learn and than advice. So people keep writing in and i promise to come back as soon as time permits.