History
of Section 67A:
Section 67A of the Finance Act, 1994 was introduced by The Finance
Act, 2012 with effect from 28-05-2012 which is reproduced below:
"67A. The rate of service tax,
value of a taxable service and rate of exchange, if any, shall be the rate of service tax or value of
a taxable service or rate of exchange, as the case may be, in force or as
applicable at the time when the taxable service has been provided or agreed to
be provided.
Explanation.—For the purposes of this
section, "rate of exchange" means the rate of exchange determined in
accordance with such rules as may be prescribed".
Plain reading of the above provision suggest that the rate of
service tax prevailing on the date of provision of service shall be relevant
for the purposes of determination of service tax liability. However, such an
interpretation would make the Point of Taxation Rules, 2011 redundant for the
purposes of determining service tax liability which was the main objective of
framing such rules.
After the insertion of section 67A, the assessee, professionals
and the tax officers were confused and divided on the issue. A doubt rose in
the minds of many that the above section has limited the scope of Point of
Taxation Rules, 2011 (POT Rules) because it is well settled law that the
provisions contained in the Act has overriding effect over the provisions
contained in the Rules made thereunder. Many experts were of the view that the
POT Rules was redundant to the extent of conflict with section 67A. So, it was
being interpreted that as per section 67A, rate in force or the rate of service
tax on the date of completion of provision of service shall be the applicable
rate of service tax and the POT Rules remained relevant only for the purpose of
determining the due date of payment of tax.
Author's Interpretation of Existing Provision:
The most important factor for determining the rate of service tax
is the point in timewhen
the service has been provided or agreed to be provided. The powers to make
rules to determine the point in time has been conferred on the Central
Government under section 94 of the Act as under:
94. Power to make rules. -
(1) The Central Government may, by notification in the Official
Gazette, make rules for carrying out the provisions of this Chapter.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the following
matters, namely: -
(a) collection and
recovery of service tax under sections 66B and 68
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