2011 (4) TMI 30 - AAR - Service Tax

Renting (leasing) of movable properties - Advance Ruling - applicant proposes to enter into a new business and wants to seek a ruling regarding its liability to pay service tax, if any, on that business - the equipment is purchased or taken on lease by the applicant - The answer to the question would also depend upon the nature of the actual transaction that is proposed to be entered into and the vague facts set out in the application would not justify rendering a ruling thereon - Since exclusive possession and effective control of the equipment is to be transferred to the lessee during the term of the lease, Section 65(105)(zzzzj) cannot also be attracted - Held that - the proposed leasing of the locomotives coaches/wagons by the applicant for a short duration to a lessee on a rent, the term or rent bearing no correlation to either the life of the equipment or the cost of the equipment, would not be exigible to service-tax under the Finance Act, 1994 on the basis of the definition in Section 65(12) of the Act - not liable to service tax.

Issues Involved:
1. Liability to pay service tax on operating dry lease.
2. Liability to pay service tax on operating dry lease with repairs and maintenance.
3. Liability to pay service tax on undertaking only repair and maintenance services.
4. Liability to pay service tax on entering into two separate contracts for dry lease and repair and maintenance.

Detailed Analysis:

1. Liability to pay service tax on operating dry lease:

The applicant, a Public Sector Undertaking under the Ministry of Railways, sought an advance ruling on whether service tax is leviable on the activity of operating dry leases of locomotives, coaches, and wagons. The applicant argued that dry lease, which involves leasing equipment for a definite period with an obligation on the lessee to return the leased article and pay rent, should not attract service tax. The department, however, relied on clause (105)(zm) of Section 65 read with the definition of banking and financial services in clause (12) of the Act, arguing that equipment leasing falls under financial leasing services and thus is liable for service tax.

Upon reviewing Section 65(12) of the Act, the Authority noted that "financial leasing services" include equipment leasing and hire-purchase, where the lease payment covers the full cost of the asset along with interest charges, and the lessee has the option to own the asset at the end of the lease period. The Authority concluded that the applicant's proposed activity of leasing equipment for a short term without providing other services and without transferring ownership does not constitute financial leasing services. Therefore, such a transaction is not exigible to service tax under the Finance Act, 1994.

2. Liability to pay service tax on operating dry lease with repairs and maintenance:

The applicant did not pursue a ruling on this issue during the hearing, acknowledging that contracts for repair and maintenance would attract service tax under clauses (105)(zzg) or (105)(zzzzj) of Section 65 of the Act.

3. Liability to pay service tax on undertaking only repair and maintenance services:

Similarly, the applicant conceded that undertaking only repair and maintenance services for leased stock would attract service tax, as per the definitions in Section 65 of the Act.

4. Liability to pay service tax on entering into two separate contracts for dry lease and repair and maintenance:

The applicant also did not pursue a ruling on this issue, acknowledging that separate contracts for dry lease and repair and maintenance would attract service tax.

Conclusion:

The Authority ruled that the proposed leasing of locomotives, coaches, and wagons by the applicant for a short duration on rent, without correlation to the life or cost of the equipment and without transferring ownership, would not be liable for service tax under the Finance Act, 1994. This ruling is subject to the condition that the actual transaction aligns with the described activity. The Authority did not rule on the other transactions as the applicant conceded they would attract service tax.

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