Dr. Sanjiv Agarwal
‘Resident firm’ can be Applicant (w.e.f. 1.3.2015)
Vide Notification No. 9/2015-ST dated 1.3.2015, the facility of advance ruling has been extended to all resident firms w.e.f. 1.3.2015 by specifying the ‘resident firms’ under section 96A (b) (iii) of the Finance Act, 1994. For this purpose, ‘resident’ and ‘firm’ have also been defined in the said notification by way of an explanation. Thus, w.e.f. 1.3.2015, ‘resident firm’ is also eligible to be an applicant and seek advance ruling on specified matters concerning Service Tax. Accordingly, ‘resident firm’ would include any of the following types of firms –
(a) firm as per Indian Partnership Act, 1932
(b) Limited liability partnership as per Limited Liability Partnership Act, 2008
(c) Limited liability partnership which has no company as its partner
(d) Sole proprietorship firm
(e) One person company
These were not allowed to seek advance ruling prior to 1.3.2015 as it was available for only non-residents and body corporates.
To understand about scope of resident firm, following meanings are relevant –
Firm [Section(4) of Indian Partnership Act, 1932]
‘Partnership’ is the relation between persons who have agreed to share the profits of business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually ‘partners’ and collectively ‘a firm’ and the name under which their business is carried is called the ‘firm name’
Limited Liability Partnership [Sections 2(1)(n) and 3 of Limited Liability Partnership Act, 2008]
‘Limited liability partnership’ means a partnership formed and registered under this Act. [Section2(1) (n)]
Limited liability partnership to be body corporate.
1) A limited liability partnership is a body corporate formed and incorporated under this Act and is a legal entity separate from that of its partners.
2) A limited liability partnership shall have perpetual succession
3) Any change in the partners of a limited liability partnership shall not affect the existence, rights or liabilities of the limited liability partnership. (Section 3)
One Person Company [Section 2(62) of the Companies Act, 2013]
‘One Person Company’ means a company which has only one person as a member.
Sole proprietorship would mean and include individuals (i.e., firms having only one person as its owner or proprietor who engages himself or herself in activity as per section 96A (a) of the Finance Act, 1994, i.e. services proposed to be provided by the applicant.
Resident [Section 2(42) read with section 6 of Income Tax Act, 1961]
‘Resident’ means a person who is resident in India within the meaning of section 6 .