GST- meaning of ‘services’ seems very restricted due to primary meaning being ‘anything’

[CA DEV KUMAR KOTHARI]

Relevant laws:

THE CENTRAL GOODS AND SERVICES TAX ACT, 2017.  In short  CGST

THE INTEGRATED GOODS AND SERVICES TAX ACT,  2017. In short  IGST

THE UNION TERRITORY GOODS AND SERVICES TAX ACT, 2017. In short UTGST

On reading of provisions relating to charge of GST and exemption it appears that ‘supply’ is basis and supply includes supply of goods and services both. Supplier is a taxable entity.  The terms and expression “services” has been given a definite meaning. Therefore, any service to be part of ‘supply’ must be a service as per meaning given for it. 

Common definition or meaning of “services”:

We find that  definition of “services” is provided only in CGST and not in IGST, UTGST. Therefore, meaning of services as per CGST is applicable in IGST, UTGST.

We also find that few specific services have been included in meaning of ‘services’ and as per separate definition of some services.

These aspects make highly cumbersome situation and can lead to litigation in which it is likely that only few specific services will be taxable.

From THE CENTRAL GOODS AND SERVICES TAX ACT, 2017

Definitions:

(2). In this Act, unless the context otherwise requires,––

XXX

   (102) “services” means anything  other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged;

Analysis of meaning of Services as per S.2 (102) of CGST:

                  “services” means  anything  other than goods, money and securities  but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged;

Analysis:

Although the definition clause starts with standard opening words ‘unless the context otherwise requires’ .. , however in relation to services we find that:

a. A definite meaning has been given by use of word ‘means’ 

b. Service means ‘anything’ this means that it should be a thing.

• A service is generallynot a thing it is also not an article or thing live or dead, movable or immovable etc.

c. Thing should be other than goods, money and securities.

d. but includes activities relating to :

the use of money

conversion of money by cash or by any other mode,

conversion of money from one form, currency or denomination, to another form,

currency or denomination

                      for which a separate consideration is charged;

Author feels that the above meaning of services is very defective and can be fatal to valid levy of tax on most of services under regime of GST.

This is because we find that primary meaning is that it should be ‘anything’,  then certain things are excluded – this shows that being a thing is important.

Thereafter an exception is provided by use of words ‘but includes activities of …  ‘  and some specific activities or services related with money are considered to be services, that too if a separate charge is charged.

On reading of the meaning, for any other service, it appears that service should first of all be ‘anything’.

Some relevant definitions from dictionaries:

For simplicity definitions of service, thing and  anything, in different context and examples have been reproduced form one dictionary with highlights added for relevance in context of GST:

Definition of ‘service’ in different context as per

http://www.dictionary.com/browse/service

noun

1. an act of helpful activity; help; aid:

to do someone a service.

2. the supplying or supplier of utilities or commodities, as water, electricity, or gas, required or demanded by the public.

3. the providing or a provider of accommodation and activities required by the public, as maintenance, repair, etc.:

The manufacturer guarantees service and parts.

4. the organized system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public:

a television repair service.

5. the supplying or a supplier of public communication and transportation:

telephone service; bus service.

6. the performance of duties or the duties performed as or by a waiter or servant; occupation or employment as a waiter or servant.

7. employment in any duties or work for a person, organization, government, etc.

8. a department of public employment, an administrative division of a government, or the body of public servants in it:

the diplomatic service.

9. the duty or work of public servants.

10. the serving of a sovereign, state, or government in some official capacity.

11. Military.

1. the armed forces:

in the service.

2. a branch of the armed forces, as the army or navy:

Which service were you in during the war?

12. Ordnance. the actions required in loading and firing a cannon:

service of the piece.

13. Often, services. the performance of any duties or work for another; helpful or professional activity:

medical services.

14. something made or done by a commercial organization for the public benefit and without regard to direct profit:

Certain books are published at a loss as a public service.

15. Also called divine service. public religious worship according to prescribed form and order.

16. a ritual or form prescribed for public worship or for some particular occasion:

the marriage service.

17. the serving of God by obedience, piety, etc.:

voluntary service.

18. a musical setting of the sung portions of a liturgy.

19. a set of dishes, utensils, etc., for general table use or for particular use:

a tea service; service for eight.

20. answering service.

21. Law. the serving of a process or writ upon a person.

22. Nautical. tarred spun yarn or other small stuff for covering the exterior of a rope.

23. the act or manner of putting the ball or shuttlecock into play; serve.

1. the ball or shuttlecock as put into play.

24. the mating of a female animal with the male.

adjective

25. of service; useful.

26. of, relating to, or used by servants, delivery people, etc., or in serving food:

service stairs; the service pieces in a set of dishes.

27. supplying aids or services rather than products or goods:

Medicine is one of the service professions.

28. supplying maintenance and repair:

He operates a service center for electrical appliances.

29. of, for, or pertaining to the armed forces of a country or one of them:

a service academy.

30. charged for providing service:

a service fee of 15 percent on the restaurant check.

31. providing, authorizing, or guaranteeing service:

a service industry; a service contract.

verb (used with object), serviced, servicing.

32. to make fit for use; repair; restore to condition for service:

to service an automobile.

33. to supply with aid, information, or other incidental services.

34. (of a male animal) to mate with (a female animal).

35. Finance. to pay off (a debt) over a period of time, as by meeting periodic interest payments.

Idioms

36. at someone's service, ready to be of help or use to someone; at one's disposal:

You will have an English-speaking guide at your service.

37. be of service, to be helpful or useful:

If we can be of service, do not hesitate to call.

Definition of ‘thing’ in different context  and examples as per http://www.dictionary.com/browse/thing

noun

1.  a material object without life or consciousness; an inanimate object.

2.  some entity, object, or creature that is not or cannot be specifically designated or precisely described:

The stick had a brass thing on it.

3. anything that is or may become an object of thought:

  things of the spirit.

4. things, matters; affairs:

Things are going well now.

5. a fact, circumstance, or state of affairs:

It is a curious thing.

6. an action, deed, event, or performance:

to do great things; His death was a horrible thing.

7. a particular, respect, or detail:

perfect in all things.

8. an aim; objective:

The thing is to reach this line with the ball.

9. an article of clothing:

I don't have a thing to wear.

10. things.

1. implements, utensils, or other articles for service:

I'll wash the breakfast things.

2. personal possessions or belongings:

Pack your things and go!

11.  a task; chore:

I've got a lot of things to do today.

12. a living being or creature:

His baby's a cute little thing.

13. a thought or statement:

I have just one thing to say to you.

14. Informal. a particular interest or talent:

Sports is not my thing.

15. Informal. a peculiar attitude or feeling, either positive or negative, toward something; mental quirk:

She has a thing about cats.

16. something signified or represented, as distinguished from a word, symbol, or idea representing it.

17. a topic, behavior, or activity involving or limited to a specified group:

It’s a girl thing, so you wouldn’t understand.

18. Informal. something that people do (often used in expressions of mild disapproval or mockery):

Since when did clapping at the end of a movie become a thing?

19. Law. anything that may be the subject of a property right.

20. new thing, Jazz. free jazz.

21. the thing.

1. something that is correct or fashionable:

That café is the thing now.

2. that which is expedient or necessary:

Definition of ‘anything’ in different context as per

http://www.dictionary.com/browse/anything

pronoun

1. anything whatever; something, no matter what:

Do you have anything for a toothache?

noun

2.  a thing of any kind.

adverb

3. in any degree; to any extent; in any way; at all:

Does it taste anything like chocolate?

Idioms

4. anything but, in no degree or respect; not in the least:

The plans were anything but definite.

5. anything goes, any type of conduct, dress, speech, etc., is considered acceptable or valid or is likely to be encountered and tolerated:

That resort is a place where anything goes!

Unquote

On reading of above definitions it is clear that ‘thing’ or ‘anything’ and a service are entirely  different. Even in use as a residual item, like for which specific name is not given or found in use,  a service cannot be called ‘anything’, in case of service it can be ‘any service’ or ‘any activity’.

Loose or wrong use of word thing or anything in context of services in common conversations by people, cannot be a guide to say that a service shall fall within residuary item ‘anything’. A service must be an activity and not a thing.

For example:

A. In case of education books and copies are things whereas teaching is not a thing but an activity.

B. In case of doctor, prescribing medicines is an activity or a service but supplying medicines is supply of things.

C. A verbal opinion of an Advocate cannot be called a thing but a service.

D. Even a written opinion of an Advocate cannot properly be called a thing but a service. Though in loose talk we may say a piece of paper as a thing. But definitely an opinion written on a piece of paper is not a piece of paper. Its value is increased due to opinion written on it. And therefore, this cannot be called anything or thing but can only be called as service.

E. Similar is case about documents , reports, opinion, prepared by any person and written on pages. The contents on those pages cannot be called ‘anything’ but information which is result of services provided and not because of paper used.

Sometimes, some activities may loosely be called a thing, as we find from some of usages of word in relation to some service or activity but in it is not a service cannot be called a thing in legal parlance. Particularly in tax laws where there is no room of doubt or ambiguity when we consider imposing a tax.

Therefore, even as a residuary item, particularly in legal parlance relating to taxation any service cannot be brought into category of ‘anything’ or ‘thing’ and it is ,in any case, not free from doubt.

Amendment is desirable:

In view of above discussion author feels that an amendment of the meaning of Services is immediately required. This defect in the meaning can be cured by proper amendment only and not by way of general or special order for removal of difficulties as provided in S.172 of CGST Act.

Unless an amendment is made, the levy of tax on most of services, can be challenged or denied to be effective, if the service provided  is not ‘anything’ and is not specifically included in the meaning, as discussed earlier. Various rules on interpretation will be helpful and in favour of service providers. Therefore, tax on such services, can be paid under protest and without prejudice.