Rate of Service Tax– Section 67A linked with POT Rules, 2011 to prevent disputes

• BACKGROUND – Section 67A and POT Rules:

The Point of Taxation Rules, 2011 (in short POT Rules) was introduced w.e.f. 01-04-2011 to define and determine the point of taxation (in short POT) i.e. point in time when a service shall be deemed to have been provided. The twin objectives was to bring certainty regarding due date for payment of service tax (on accrual basis) and to determine the applicable rate of service tax as the one prevailing on the date of POT. While issuing the draft rules, the Central Government stated as under:

“The purpose of these rules is to introduce clarity and certainty in the matter of levy and collection of Service Tax particularly in situations of change of rate of service tax or imposition of service tax on new services. At present there is lack of clarity as to the date from which the changed rate or a new levy of service tax become payable and tax payers as well as tax officials face uncertainty in this regard as the provisions are not explicit. Similar uncertainty prevails in regard to cases of continuous supply of services. So far these issues have been addressed by CBEC through clarificatory circulars that accompany such changes. A need has been felt to put the regulatory frame work on a transparent, clear and durable basis and hence these rules”.

Simultaneously, Rule 5B of the Service Tax Rules, 1994 w.e.f. 01-04-2011 provided that the rate of tax shall be the rate prevailing at the time when the services are deemed to have been provided under the rules made in this regard i.e. POT Rules.

At the time of shifting to negative list regime, the Central Government introduced Section 67A in the Finance Act, 1994 with effect from 28-05-2012 which is reproduced below, as amended:

“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”.

Also, Rule 5B was omitted from Service Tax Rules, 1994 w.e.f. 01-07-2012 vide Notification No. 36/2012-ST dated 20-06-2012.

Plain reading of the above provision read with omission of Rule 5B suggest that the rate of service tax prevailing on the date of provision of service (in contrast to the date of POT) 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 one of the main objectives 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 principles of law that the provisions contained in the Act has overriding effect over the provisions contained in the Rules made there under. 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 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.

• AUTHORS INTERPRETATION OF EXISTING PROVISION:

The most important factor for determining the rate of service tax is the point in time when 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;

…

…

(hhh) the date for determination of rate of service tax and the place of provision of taxable service under section 66C;

In exercise of the powers conferred as above, under section 94(2)(a) and (hhh), the Central Government issued Notification No. 18/2011-ST dated 01-03-2011 which is known as Point of Taxation Rules, 2011 and is made effective from 01-04-2011.

Under Rule 2(e) of POT Rules, the ‘Point of Taxation’ means the point in time when a service SHALL be DEEMED to have been provided.

The phrase appearing in section 67A, ‘as applicable at the time when the taxable service has been provided or agreed to be provided’ may be interpreted in harmony with POT Rules as the point in time when a service shall be deemed to have been provided after applying the relevant rules of the POT Rules.

Last but not the least, the purpose of inserting section 67A was clearly mentioned in Explanatory Memorandum to Union Budget 2012-13 under Service Tax Point III (1) which is self explanatory and reproduced as below:

“A new section 67A is being inserted to prescribe that the value of taxable service (particularly in the case of import and export of taxable services) and the rate of tax shall be determined in terms of Point of Taxation Rules, 2011”.

Thus, on the basis of above analysis, it could be interpreted that if Section 67A is read in harmony with POT Rules, and both are read together with the object of framing such rules, the service tax amount needs to be computed at the rate of service tax in force as per POT Rules and not on the date of provision of service per-se. But the controversy persisted leading to unnecessary litigation and uncertainty.

• PROPOSED AMENDMENT in SECTION 67A TO REDUCE LITIGATION & PROVIDE CERTAINTY IN APPLICABLE TAX RATE:

In a welcome move towards reducing litigation and providing certainty to the applicable rate of service tax, the Union Budget 2016 presented by the Hon’ble Finance Minister Shri Arun Jaitley on 29-02-2016 has proposed amendment to section 67A.

As per Explanatory Notes to the Finance Bill, 2016, clause 148 of the Bill seeks to amend section 67A of the Finance Act, 1994 so as to insert a new sub-section (2) therein to empower the Central Government to prescribe the time or the point in time with respect to the rate of service tax.

The clause is reproduced below:

“148. In the 1994 Act, in section 67A, the existing section shall be renumbered as sub-section (1) thereof, and after sub-section (1) as so renumbered, the following sub-section shall be inserted, namely:––

(2) The time or the point in time with respect to the rate of service tax shall be such as may be prescribed.”

Further, POT Rules is proposed to be amended vide Notification No. 10/2016-ST dated 01-03-2016 whereby in the opening paragraph, after the words ―powers conferred under, the word, letters and signs “sub-section (2) of section 67A and” shall be inserted with effect from the date of enforcement of the Finance Act, 2016.

After the proposed amendment, section 67A will be as below:

“67A. (1) 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.

(2) The time or the point in time with respect to the rate of service tax shall be such as may be prescribed.

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”.

The above proposed amendment has specifically enabled the Central Government to make rules and has linked the POT Rules with section 67A which is expected to settle the disputes regarding applicability of rate of service tax. The POT Rules shall remain relevant for determining rate of service tax as well as due date of payment of tax.

But again the question arises whether the said amendment can be applied prospectively treating the same as substantive amendment or retrospectively treating the same as clarificatory in nature. Can the department now take a view that POT Rules are irrelevant for the purpose of rate of tax till the proposed amendment is enacted?