Saturday, March 12, 2016

Controversy regarding Rate of Service Tax – Whether as per Section 67A or as per Point of Taxation Rules? Union Budget 2016 provides the key.

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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