Impact of Change of Service tax liability structure from partial reverse charge to full reverse charge on manpower SUPPLY AND SECURITY services in transition period
As discussed Supra, Notification No. 30/2012-ST dated 20-06-2012 has been amended vide Notification No. 7/2015-ST dated 01-03-2015, there by shifting the Supply of Manpower and Security services from Partial Reverse Charge to Full Reverse Charge. The stated change will be effective from 01-04-2015.
At present, Service tax liability in respect of Manpower supply and Security services are distributed as follows:
|S. No.||Description of Service||Percentage of Service tax payable by the person providing service||Percentage of Service tax payable by the person receiving the service|
|8||In respect of services provided or agreed to be provided by way of supply of manpower for any purpose or security services||25%||75%|
However, effective from 01-04-2015, 25% of the Service tax which was earlier liable to paid by service provider will be shifted in the hands of service recipient, thereby increasing the effective Service tax liability to be paid by service recipient from 75% to 100%.
Transactions for Manpower supply and Security services entered on or after01-04-2015 would not pose any problem and manifestly the service receiver would be liable to discharge 100% Service tax under Reverse Charge. But on scrutinizing the stated change in the light of provisions of the Point of Taxation Rules, 2011 (“the POT Rules”), there are chances of turmoil being faced by the service receiver in respect of transactions made in the transitional period. It is likely that the Department may dispute the tax rate at which the service recipient is required to discharge Service tax i.e. at 75%/ 100% for the services provided before 01-04-2015 and invoices/ payments made on or after 01-04-2015.
Before taking deeper dive into the area of turmoil which may crop up pursuant to stated amendment, it is apposite here to have an overview of the Point of taxation as governed under POT Rules. As we all are aware that earlier Service tax was payable on receipt of payment in respect of taxable services provided. But with the introduction of the POT Rules, now Service tax payment is made on accrual basis in terms of the provisions contained under the POT Rules. The general Rule 3 of the POT Rules stipulates that Point of taxation shall be the earlier one among raising of invoice or date of making the payment. Further, if the invoice is not raised within 30 days (45 days) from the date of completion of provision of service, Point of taxation shall be the date of completion of provision of service.
However, Point of taxation for Reverse Charge situation (full/ partial) is governed by Rule 7 of the POT Rules which stipulates the date of making payment as the Point of taxation. Further, in case the payment of the aforesaid invoice has not been made within a period of 3 months from date of invoice, then the provisions of Rule 3 of the POT Rules will supersede Rule 7 thereof.
In cases where the provisions of services are completed on or before to 31-03-2015 but the payment for the same is made on or after 01-04-2015, disputes can arise as to who is required to discharge 25% Service tax liability:
Invoice is issued on or before 31-03-2015 but payment is made on or after 01-04-2015
In such case, service provider is liable to pay 25% in terms of Rule 3 of the POT Rules. However, since payment is made on or after 01-04-2015, the Department may invoke Rule 7 of the POT Rules and allege that the service receiver is liable to pay 100% in view of the amended provisions as the date of payment is the Point of taxation.
Invoice is issued on or after 01-04-2015 and payment is also made on or after 01-04-2015
Here following two situations may arise:
a) Invoice is raised within 30 days of date of completion of service – Clearly, service receiver will have to pay 100% Service tax;
b) Invoice is not raised within 30 days of date of completion of service – Here again, service provider is liable to pay 25% in terms of Rule 3 of the POT Rules. However, since payment is made on or after 01-04-2015, the Department may invoke Rule 7 of the POT Rules and allege that the service receiver is liable to pay 100% in view of the amended provisions as the date of payment is Point of taxation.
Invoice is issued on or after 01-04-2015 but payment is made on or before 31-03-2015
Since, payment is madeon or before 31-03-2015, liability of service receiver would be to deposit Service tax at 75% in terms of Rule 7 of the POT Rules. However, the Department might raise an issue that since the invoice is raised on or after 01-04-2015, discharge of Service tax should be governed under the new provisions i.e. 100% by the service recipient only.
Conclusion:Therefore this issue needs to be handled appropriately and it is expected that the CBEC should clarify this issue at the earliest to avoid any unnecessary litigation.