CA Pradeep Jain & Sukhvinder Kaur, LLB [FYIC]
Introduction: –
The Export of Service Rules, 2005 provides that there will no service tax on the export of services. In these rules, the criteria are prescribed as to what will constitute export of service.
In Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 the services received from outside India are taxed.Now, Budget 2011 changes have been made in these Rules. The changes in Export of Service Rules, 2006 have been made vide Notification No. 12/2011-ST dated 01.03.2011. And similar re-arrangement has been effected in the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 vide Notification No. 13/2011-ST dated 01.03.2011. These changes will come in effect from 1st April, 2011.
Export of services: – It is very easy to define export of goods. It will be regarded as export when they leave Indian Territory for foreign destination. But it is very difficult to define export of services. Nothing moves physically outside India. For regarding any service as exported, the three criteria have been fixed by the Government. These criteria are defined in Rule 3 of the Export of Service Rule. These criteria are:-
1. Immovable property situated outside India: – When the specified services in this criteria are provided to an immovable property situated outside India. It will be termed as export of services.
2. Partly in India and Partly outside India: – Under this criteria, the services will be regarded as exported if they are partly performed in India and partly outside India.
3. Service recipient situated outside India: – The services provided to foreign national will be regarded as export of services.
Further, in all the cases, the remittance should come in foreign currency.
Now, the services are listed under criteria 1 and 2 and rest of services has to fulfill the criteria number 3.
Changes in this budget: – The following changes have been made in this budget for export of services.
– Services provided by builders covered under Section 65(105)(zzzzu) are added to criteria number 1. Thus, the services provided for this category of service in relation to an immovable property situated outside India will be termed as export of service.
– Rail travel agent, health check up or preventive care are added in criteria number 2. Thus, if the service is provided partly in India and partly outside India then it will be regarded as export of service.
– Earlier the services of credit rating agency, market research agency, technical testing and analysis service, transport of goods by air, Goods transport agency (transport of goods by road), opinion poll and transport of goods by rail were covered under criteria number 2. But these are deleted from the same. Thus, these will fall under residual third category. Hence, these services will be termed as export of service if the service recipient is located outside India and amount is received in foreign convertible currency. The condition of performance partly in India and partly outside India has been removed for these categories.
Similarly, on the same tune, the amendment is made for import of services also.
I would like to know if Patent and Trademark Attorneys/ Agents in India who provide services to foreign companies in India and give them service outside India and receive payment in foreign currency will be exempt from Service Tax.
I would be pleased to receive your reply.