BUDGET 2009: - Amendments relating to Service Tax on some surgical services - an analysis.

[C.A. DEV KUMAR KOTHARI]

As usual we find new or broadened services in service tax net proposed through the Finance (No.2) Bill 2009 several amendments in the provisions relating to Service Tax (chapter V of the Finance Act, 1994) and related notifications rules etc.  

In this write-up one of the proposals for imposing tax on some type of surgery is discussed.

In section 65, save as otherwise provided, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint,—

New service vide clause (zzzzk) in S.65(105):

S.65(105) '(zzzzk) to any person, by any other person, in relation to cosmetic surgery or plastic surgery, but does not include any surgery undertaken to restore or reconstruct anatomy or functions of body affected due to congenital defects, developmental  abnormalities, degenerative diseases, injury or trauma;

An analysis:

Service can be rendered to any person, by any other person,

It should be in relation to:

cosmetic surgery or plastic surgery.

Exceptions:

Taxable service will not include any surgery:

Which is undertaken to:

 restore or reconstruct anatomy of body

restore or reconstruct  functions of body

which are affected due to:

congenital defects,

 developmental abnormalities,

degenerative diseases,

 injury or trauma;

From above analysis it appears that only some type of  surgery services will only be taxable. Any exemption to individual as service provider or as service receiver has not been proposed as is case about legal services newly proposed in tax net.

Beautification shall be covered:

Cosmetic or plastic surgery for beautification over and above natural beauty of any person will be taxable. Such surgery required in other circumstances as stated in the section, to restore original beauty or original shape etc. shall not be taxable.

It is clear that congenital defects, developmental abnormalities, degenerative diseases, injury or trauma to any person requiring surgery for restoration will not be included. These terms shall also be applicable to such defects if they took place even before birth that is in the womb of mother during pregnancy. For example, a child is born with cut lips, it can be due to congenital defects, developmental abnormalities during, degenerative diseases, injury or trauma caused to the mother during her pregnancy. Therefore, cosmetics or plastic surgery required to remove such defects, which may be since birth will also not be taxable.

Ageing and surgery:

Over a period of life any one may face several situations which may be in nature of trauma, accident, injury or other health and medical reason. With ageing also one may develop defects which are in nature of  congenital defects,  developmental  abnormalities, degenerative diseases, injury or  trauma. If surgery is required by way of plastic or cosmetic surgery in such situation will also not be taxable, though the aging may also be an attributing factor.

Delay in surgery should not be ground to make it taxable:

Suppose a person suffered sickness due to any reason including injury. The defect developed may require cosmetic surgery or plastic surgery to restore the body or its functions to original condition. Due to any reason it may not ge possible to undergo surgery immediately after it was felt or advised to be undertaken. In such cases even if surgery is undertaken after some years, it will still be exempt.

Is it a trial run to levy tax on all doctors?:

This new levy may be a trial attempt of the Government and in future other medical services may also be brought into taxable category

Consequential amendment in charging section:

Amendment of charging section to cover new services:

(B) in section 66, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, for the word, brackets and letters "and (zzzzj)", the brackets, letters and word ", (zzzzj), (zzzzk), (zzzzl) and (zzzzm)" shall be substituted;

The new or amended service shall be taxable only after the Finance Bill  is enacted /passed and suitable notification is issued for the above service to be taxable.