Point of Taxation Rules, 2011

[Selvakumar Padayachi]

Notification 18/2011 dated 1^st March 2011 brought stringent provisions of service tax to get early revenue to the government by introducing “Pont of Taxation Rules, 2011”. The purpose of rule is to set out as to when service tax to be paid by the service provider and determination of effective rate of service tax.

From 1^st April 2011 the rule is came into effect but through notification no.25/2011 it is effectively applicable from 1^st July 2011.

 What is the “Point of Taxation”?

“Point of Taxation” means the point in time when a service shall be deemed to have been provided so that tax to be paid to government. This is for the purpose of Collection of Service Tax.

The following are the Point of Taxation:-

Situation	Point of Taxation
If Service Provided	Date of Invoice (If Invoice not raised within 14 days of provision of Service then date of completion of service) or Date of amount received whichever is earlier
Before provision of service Invoice raised and payment received	Date of Invoice or Date of payment received whichever is earlier
If advance received towards provision of service	Date of Advance received

In case of Service provided BEFORE the “Change in effective Rate”:

S.No	Before Change	After Change	Point of Taxation
1	Invoice Raised	Payment Received	Date of Issuing of Invoice
2	Payment Received	Invoice Raised	Date of Payment
3	Invoice Raised & Payment Received	-	Date of receipt of payment or date of issue of Invoice whichever is earlier
4	-	Invoice Raised & Payment Received	Date of receipt of payment or date of issue of Invoice whichever is earlier

 

 

In case of Service provided AFTER the “Change in effective of Rate”:

S.No	Before Change	After Change	Point of Taxation
1	Invoice Raised	Payment Received	Date of Payment
2	Payment Received	Invoice Raised	Date of issuance of Invoice
3	Invoice Raised & Payment Received	-	Date of receipt of payment or date of issue of Invoice whichever is earlier
4	-	Invoice Raised & Payment Received	Date of receipt of payment or date of issue of Invoice whichever is earlier

 

5. Payment of Tax in cases of new Services other than Services Covered under Rule 6:-

Situation	Taxability
Invoice Raised and Payment received BEFORE such service become Taxable	No tax shall be payable
Payment received BEFORE such service become taxable but Invoice raised after such service become taxable but WITHIN 14 days period referred in Rule 4A of the Service Tax Rules, 1994	No tax shall be payable
Payment received BEFORE such service become taxable but Invoice raised after such service become taxable but NOT within 14 days period referred in Rule 4A of the Service Tax Rules, 1994	Taxable

 

Determination of Point of Taxation in case of “Continuous Supply of Service”:-

“Continuous Supply of Service” means any service provided or to be provided for a continuous period exceeding three months under a contract.

Situation	Point of Taxation
If Invoice Raised within 14 days of completion of Service	The time when the invoice for the service provided or to be provided is issued.
If Invoice NOT Raised within 14 days of completion of Service	Date of Completion of Service
If, before the time specified above the service provider receives a payment.	Date of receipt of Payment
If advance received (in all cases)	Date of receipt of each such advance

 

Date of Completion: Where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the service receiver to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service

Determination of Point of Taxation in case of Specified Services or Persons:-

S.No	Specified Persons	Point of Taxation
1	The services covered by sub-rule (1) of rule 3 of Export of Services Rules, 2005	Date on which Payment Received	Where payment is not received within the period specified by the Reserve Bank of India, the point of taxation shall be determined, as if this rule does not exist
2	The persons required to pay tax as recipients under the rules made in this regard in respect of services notified under sub-section (2) of section 68 of the Finance Act, 1994 [Notified by Central Govt.]		Where the payment is not made within a period of six months of the date of invoice, the point of taxation shall be determined as if this rule does not exist.
3	Individuals or proprietary firms or partnership firms providing taxable services  Architect Interior Decorator Consulting Engineer Chartered Accountant Cost Accountant Company Secretary Scientific & Technical Consultancy Legal Consultancy

 

 

The point of taxation in respect of associated enterprises:- Where the person providing the service is located outside India, the point of taxation shall be the date of credit in the books of account of the person receiving the service or date of making the payment whichever is earlier. Associated enterprises means as set out under Section 92A of the Income-tax Act, 1961.

Determination of Point of Taxation in case of copyrights etc:-

In respect of royalties and payments pertaining to copyrights, trademarks, designs or patents, the point of taxation is as follows.

Situation When	Point of Taxation
The whole amount of consideration  for provision of service is ascertainable at the time when service was performed	Date of issuance of Invoice or date of receipt of payment whichever is earlier
The whole amount of consideration for provision of service is NOT ascertainable at the time when service was performed. But Subsequently ascertained in part or otherwise.	Each time- Date of invoice or date of receipt of payment whichever is earlier

This point of taxation rules are not applicable for Provision of service completed or invoices issued prior to 1^st July 2011. In Case of Services for which provision is completed on or before 30th day of June, 2011 or where the invoices are issued up to the 30th day of June, 2011, the point of taxation shall, at the option of the taxpayer, be the date on which the payment is received or made as the case may be.

Amendments in CENVAT Credit Rules, 2004:

1. CENVAT Credit rules has been amended to allow service receiver take credit of service tax payable or paid based on invoice received.

1. In case of an input service where the service tax is paid on reverse charge by the recipient of the service, the CENVAT credit in respect of such input service shall be allowed on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice.

1. In case the payment of the value of input service and the service tax paid or payable as indicated in the invoice, bill or, as the case may be, challan referred to in rule 9, is not made within three months of the date of the invoice, bill or, as the case may be, challan, the manufacturer or the service provider who has taken credit on such input service, shall pay an amount equal to the CENVAT credit availed on such input service and in case the said payment is made, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier.

1. If any payment or part thereof, made towards an input service is refunded or a credit note is received by the manufacturer or the service provider who has taken credit on such input service, he shall pay an amount equal to the CENVAT credit availed in respect of the amount so refunded or credited.

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Discussions to this article

[KOHINOOR MITRA]

Sir,

What is your opinion on the Service Taxability on "Mobilisation advance" paid to contractors in any Turnkey or Works Contract type of jobs. Particulalrly where no specific mention on the type of job is mentioned in the said advance, how do a contractor go about it please?

Regards

Kohinoor  Mitra

[Selvakumar Padayachi]

 Service tax is payable on Mobilization Advance amounts received if the final bill is liable for Service Tax.