Service Tax under Finance (No. 2) Act, 1998 - Service Tax - Trade Notice No. 05/98 - Indore

Attention of the trade is invited to Section 116 of the Finance (No. 2) Act, 1998, which inter alia , provides for levy of service tax on the services rendered by :- (i) Architects; (ii) Interior Decorators; (iii) Credit Rating Agencies; (iv) Market Research Agencies; (v) Management Consultants; (vi) Real Estate Agents and Real Estate Consultants; (vii) Security Agencies; (viii) Mechanised Slaughter Houses; (ix) Underwriters; (x) Chartered Accountants; (xi) Cost Accountants; (xii) Company Secretaries. 2. The above services have been brought under the service tax net with effect from 16-10-1998 and Notification Nos. 53/98-S.T. to 58/98-S.T. , all dated 7-10-1998 have been issued in this regard. 3. The salient features along with the definitions of these services are as under :- A. Architects and Interior Decorators 3.1 Under Section 65(5) of the Finance Act, 1994 , an architect has been defined to mean any person whose name is, for the time being, entered in the register of architects maintained under Section 23 of the Architects Act, 1972 and also includes any commercial concern engaged in any manner, whether directly or indirectly, in rendering services in the field of architecture. The nature and scope of the services rendered by architects are well delineated under the provisions of the Architects Act. 3.2 Broadly, the work of an architect starts from providing appropriate advice keeping in view the requirements of the client at the preliminary stage of initial sketches, specifications and drawing of plans, and consists of providing detailed drawings, approval of the drawings from the concerned authorities, supervision at each stage of construction, and till the point when the completion certificate is obtained from the authorities. 3.3 The services rendered by an architect are of a very diverse nature and are spread over a fairly long period of time. At the time when an architect is actually engaged for a particular project, letters (contract) is exchanged for the same between the architect and the person engaging him. The contract/agreement details the entire scope of the services to be rendered by the architect, including the terms and conditions of employment and the payment schedule for the service rendered by the architect. The taxable service means any service provided to a client by the architect in his professional capacity in any manner. 3.4 As per Section 65(20) interior decorator means any person engaged, whether directly or indirectly, in the business of providing by way of advice, consultancy, technical assistance or in any other manner, services related to planning, design or beautification of spaces, whether man-made or otherwise and includes a landscape designer. The taxable service in the case of an interior decorator means any service provided to a client in relation to planning, design or beautification of spaces, whether man-made or otherwise, in any manner. 3.5 An issue has been raised as regards the basis on which determination of the service tax liability on ongoing projects (on the date of service tax coming into effect) is to be made. In this regard it is clarified that service tax is payable only in respect of services rendered on or after the date on which the service tax provisions come into force. Service tax is not required to be paid on payments received for services rendered prior to the service tax concerned being notified. 3.6 Further, in cases where an architect/interior decorator sub-contracts part/whole of his work to another architect/interior decorator, it is clarified that no service tax is required to be paid by the sub-contractor provided that the principal architect/interior decorator has paid the service tax on the services rendered by him to the client and provided the sub-contracting is in respect of the same service category. In other words, work is sub-contracted by one architect to another architect. In such cases, if the principal architect pays the service tax on services rendered by him to his client, the sub-contracting architect is not required to pay the service tax. However, service tax would be required to be paid in a case where sub-contracting is to a different service category. For example where an architect sub-contracts his work to a consulting engineer, then service tax would be required to be paid by both the architect and the consulting engineer on the services rendered by them. Similarly, a market research agency would be required to pay service tax on services rendered by it to an advertising agency, even if the advertising agency is also liable to pay service tax on the amount billed to its client for advertising services (which, inter alia , includes the amount paid by the advertising agency for such market research services to the market research agency). 3.7 It is also clarified that service tax is not leviable on supply of materials, items of furniture or decoration, per se, but on services, rendered in any manner, concerning planning, design or beautification of spaces. Also the services rendered by Art directors of films and others who render services of design etc. for setting up temporary structures/settings for shootings etc. do not attract the service tax levy as such interior decoration has no permanency and is only of a temporary nature. B. Credit Rating Agencies (i) As per Section 65(15) of the Finance Act, 1994, credit rating agency means any commercial concern engaged in the business of credit rating of any debt obligation or of any project or programme requiring finance, whether in the form of debt or otherwise, and includes credit rating of any financial obligation, instrument or security, which has the purpose of providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal. Basically, rating is an expression of an opinion regarding the ability of the borrower to pay back the amount borrowed by way of a debt. Some of the main credit rating agencies in India are CRISIL, ICRA, CARE and Duffs Phelps. The credit rating agencies are registered with the Reserve Bank of India. These agencies provide, among others, ratings in respect of corporate bonds, commercial paper, fixed deposits, municipal debt, infrastructure bond, utilities, asset backed securities, structured obligations, toll road bonds, mutual funds etc. All public issues of debt are statutorily required to be rated. These ratings help individual and institutional investors frame their investment policies based on bench mark ratings. (ii) The client wanting to get rated a debt issue being floated by it requires the services of a credit rating agency. It is understood that for this they enter into a written agreement for which there is a standardised format. The agreement also specifies the charges for such rating services and also specifies the charges for regular surveillance of the existing rating, whether it needs to be revised or otherwise. The fees of the rating agency is generally expressed as a percentage of the amount of debt sought to be raised. The fees on any assignment are usually paid at the time of entering into an agreement i.e. in advance. Such amounts are kept as advance against rating fee and is recognised as income only when the rating is assigned. After the rating is given it is communicated to the client. The rating of any instrument remains under surveillance until the entire debt is repaid. The surveillance is a mandatory exercise for rating agencies. After surveillance the client is billed as per the agreed fee structure. Service tax is payable both on the fees received for credit rating of the debt instrument and the surveillance fees. (iii) It is clarified that information and advisory services, if any, rendered by credit rating agencies would not attract service tax for the reason that taxable service in respect of a credit rating agency means services provided to a client only in relation to credit rating of any financial obligation, instrument or security. Services of research and information such as analysis of industries in specific sectors, of financial and business outlook of a company, other customised services on say business houses and capital markets, indexing services, and information services, such as, privatisation policy for infrastructure projects, macro studies of infrastructure sector, implication of Government policy in respect of any sector, financial modelling, bid evaluation, power purchase agreements, restructuring of SEBs etc. are not services in relation to the credit rating of any financial obligation, instrument or security and are hence outside the gamut of service tax on the services of credit rating. (iv) The amount received in advance for the service of rating to be provided to the client, is only an advance and the services can only deemed to have been provided only when the rating exercise has been completed, i.e. when rating of any instrument has been assigned. In case rating is not done, for any reason, and the entire amount is returned back to the client, it cannot be said that services have been rendered and hence service tax is not attracted. Similarly in the case of ongoing projects, where rating has been done subsequently, the relevant date for determining the service tax liability would be the date when rating has been assigned to a particular instrument. C. Market Research Agencies (i) Under Section 65(25) a market research agency means any commercial concern engaged in conducting market research in any manner, in relation to any product, service or utility, including all types of customised and syndicated research services. Market research inter alia, includes research based services in respect of consumer markets, industrial marketing, business to business marketing, social and rural marketing etc. and is based on the requirements of the client. Such research services may be carried out by various techniques and may take the form of brand and advertising research. Such market research services include studies such as, strategic research brand positioning development, new product development research, creative development research, brand name, logo, pack label research, corporate image, diagnostic market research, customer research etc. Thus, it is apparent that the market research services are of a very diverse nature and of a very vide variety. (ii) A question has been raised as to whether service tax is payable by a market research agency in case an advertising agency commissions a market research for or on behalf of a client of the advertising agency, as it would result in double or multiple taxation (as the advertising agency is also liable for paying service tax on services rendered by him to his client). It is clarified that in the instant case a market research agency would be required to pay service tax on services rendered by it to an advertising agency, and the advertising agency is also liable to pay service tax on the amount billed to its client for advertising services. As stated earlier in para 5.6, service tax is not required to be paid by a sub-contractor only in cases where service tax has been paid by the principal on services rendered by him to his client and provided further that the sub-contracting in question is in respect of the same service category. (iii) An issue has been raised whether service tax is payable in respect of services rendered to foreign clients in India, and in respect of such services rendered abroad. It is clarified that service tax is payable on all taxable services rendered in India, whether to an Indian or foreign client. However, services rendered aboard shall not attract service tax levy as service tax extends only to services provided within India. (iv) Another concern that has been raised is whether service tax is payable on the reimbursable/out-of-pocket expenses charged to the client on actual basis. As regards charges billed to the client on account of out of pocket expenses which are reimbursable on actual basis, such as, travelling, boarding and lodging expenses is concerned, the same are not subject to service tax. In this respect, the service tax assessee may be required by the jurisdictional Commissioner of Central Excise to provide documentary evidence substantiating his claim for abatement from the gross amount received from the client for services rendered. Similar dispensation in respect of reimbursable/out-of-pocket expenses charged to the client on actual basis is also available in respect of other services. D. Management Consultants (i) As per Section 65(21) of the Finance Act, 1994 , management consultant means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation in any manner and includes any person who renders any advice, consultancy or technical assistance, relating to conceptualising, devising, development, modification, rectification or upgradation of any working system of any organisation. The taxable service means the service provided to a client by a management consultant in connection with the management of any organisation in any manner. E. Real Estate Agents and Real Estate Consultants (i) As per Section 65(35), real estate agent means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate and includes a real estate consultant. Section 65(36) defines a real estate consultant to mean any person who renders in any manner, either directly or indirectly, advice, consultancy, or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate. (ii) The rate of service tax on realty service is 5%. It may be noted that some international realty concerns, such as Richard Ellis, Colliers and Jardine etc. have opened shop in India and they are providing comprehensive realty services. Apart from the traditional services in respect of sale/purchase/leasing of real estate, such concerns are, inter alia, providing services to real estate developers and promoters in respect of evaluation of a proposed real estate scheme/project by conducting techno-economic studies, providing feasibility reports and by even helping in marketing real estate projects. Such services shall also attract service tax. However, it is clarified that activity of actual construction of any building, carried out by builders/developers does not attract service tax levy as it is not a service within the meaning of the term real estate agent or real estate consultant. F. Security Agencies (i) As per the provisions of Section 65(40), security agency means any commercial concern engaged in the business of rendering services relating to the security of any property, whether movable or immovable, or of any person, in any manner and includes the services of any investigation, detection or verification, of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel. The ambit of the term security agency is wide enough to include not only agencies rendering services of providing security but also detective agencies which are providing confidential services in respect of say, financial credibility of any person, trade mark/ copyright infringements etc. Most of the security agencies are only registered under the Shops and Establishments Act. These agencies may not be required to take a licence under any other statutes. (ii) An issue that has been raised is whether service tax is leviable on the entire amount charged to the clients to whom security guards/personnel have been provided as the bulk of the charges represent salary to the employee (at least the minimum wage prescribed under the law), employer s ESI and EPF contribution, income tax deduction at source, payment towards professional tax and labour welfare fund and other non-statutory charges such as bonus, leave, uniforms, incidental expenses and other administrative and miscellaneous expenses. It is clarified that no such abatement from the amount charged to the client for services rendered is available for purpose of computing the service tax liability. However, abatement in respect of statutory levies and taxes can be granted provided the same has some direct relation with the services rendered to the client and is hence specifically billed to the client and is reimbursable by the client on an actual basis. Statutory levies of the kind mentioned above, such as EPF, ESI, contribution towards labour welfare fund etc. are required to be borne by all types of employers and not only security agencies. Such statutory levies have no direct co-relation with the services rendered to the client (inasmuch as the same arise out of employer-employee relationship) and are not specifically relatable to the services rendered to the client. As such it is clarified that no abatement in respect of the such statutory levies is admissible for the purposes of computing the service tax liability. (iii) The services of providing `safe deposit lockers or `security/safe vaults , either by the banks or by others is meant to provide security in respect of movable property. However service tax on the services of providing `safe deposit lockers or `security/safe vaults has been exempted vide Notification No. 56/98-S.T., dated 7th October, 1998. G. Mechanised Slaughter Houses (i) As per Section 65(27) , mechanised slaughter house means a commercial concern engaged in the business of slaughtering bovine animals with the aid of machines. The taxable service means any service provided to any person by a mechanised slaughter house in relation to slaughtering of bovine animals. As per Section 66(5), the service tax for the services rendered in relation to slaughtering is to be paid at the rate of ₹ 1,000 per bovine animal. Bovine animals, in the Indian context are mainly bullocks and buffaloes. It is understood that only uneconomic bovines which are certified as not usable for milch or agricultural purposes by the Commissioner of Animal Husbandry or his representative are allowed to be slaughtered. (ii) It is clarified that in cases where the mechanised slaughter houses are not providing any service of slaughtering of animals to any other person, but are slaughtering animals which have been purchased by them service tax levy is not attracted as no service is rendered to any person by them. (iii) Service tax on services rendered by mechanised slaughter houses in relation to slaughtering of bovine animals has been reduced from ₹ 1,000 to ₹ 100 per bovine animal vide Notification No. 58/98-S.T., dated 7-10-1998. H. Underwriting Services (i) As per Section 65(53) and Section 65(54) of the Finance Act, 1994 , underwriter has the meaning assigned to it in clause (f) of Rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993 and underwriting has the meaning assigned to it in clause (g) of Rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993. According to the Securities and Exchange Board of India (Underwriters) Rules, 1993, underwriter means a person who engages in the business of underwriting of an issue of securities of a body corporate and underwriting means an agreement with or without conditions to subscribe to the securities of a body corporate when the existing shareholders of such body corporate or the public do not subscribe to the securities offered to them. The taxable service means the service provided to a client by an underwriter in relation to underwriting. (ii) Underwriting services can be provided by financial institutions, banks, share brokers who are members of stock exchanges and investment/companies/trusts with adequate financial capacity, appropriate standing and experience. However, as per Rule 3 of the Securities and Exchange Board of India (Underwriters) Rules, 1993 no person can act as underwriter unless he holds a certificate granted by the SEBI under the Securities and Exchange Board of India (Underwriters) Regulations, 1993. As per Rule 4(b) of the Securities and Exchange Board of India (Underwriters) Rules, 1993, an underwriter is required to enter into a valid agreement with the body corporate on whose behalf he is acting as an underwriter and the said agreement amongst other things may define the allocation of duties and responsibilities between him and such body corporate. As per Regulation 14 of the SEBI (Underwriters) Regulations, 1993 shall also provide for, inter alia, the amount of commission or brokerage payable to the underwriter. Service tax is required to be paid by the underwriter at the rate of 5% on such commission or brokerage paid to him for the services of underwriting rendered by him. The underwriting commission varies, depending upon the category of underwriter, whether a financial institution or otherwise and also on the amounts devolving on the public and those devolving on the underwriters. However the maximum underwriting commission applicable is notified by the Banking Department of the Ministry of Finance, though, lower rates of underwriting commission can also be negotiated between the underwriter and the client. The commission varies from 0.5% to 2.5%. I. Practising Chartered Accountants, Cost Accountants and Company Secretaries (i) Section 65(31) of the Finance (No. 2) Act, 1998 defines a practising chartered accountant to mean a person who is a member of the Institute of Chartered Accountants of India and is holding a certificate of practise granted under the provisions of the Chartered Accountants Act, 1949 and includes any concern engaged in rendering services in the field of accountancy. Section 65(32) of the Finance (No. 2) Act, 1998 defines a practising cost accountant to mean a person who is a member of the Institute of Cost and Works Accountant of India and is holding certificate of practise granted under the provisions of the Cost and Works Accountants Act, 1959 and includes any concern engaged in rendering services in the field of cost accountancy. As per Section 65(33), practising company secretary means a person who is a member of the Institute of Company Secretaries of India and is holding a certificate of practise granted under the provisions of the Company Secretaries Act, 1980 and includes any concern engaged in rendering services in the field of company secretary ship. (ii) The nature and scope of the services rendered by the chartered accountants, cost accountants and company secretaries are delineated under the respective enactments and the rules and regulations made thereunder. The services rendered by these professions are of a specialised nature and is provided by virtue of their professional experience and specialised education. (iii) One of the issues raised is whether the service tax is leviable on services rendered by chartered accountants on services which are not exclusively performed by them, but also by others such as advocates etc. It has been decided that service tax is to be paid only on services of auditing and accounting rendered by practising chartered accountants in their professional capacity. The services rendered by chartered accountants which shall attract service tax, include audit/certification services required to be rendered in terms of various statutes and/or under any specific notification/requirements issued by Government or other authorities and, inter alia, include the following services : (a) Statutory audit of companies under the Companies Act, 1956 , both in respect of private sector and the public sector. (b) Audit of Companies carrying on General Insurance business under the Insurance Act, 1938. (c) Audit of Life Insurance Corporation. (d) Audit of Banking Sector including Reserve Bank of India, State Bank of India, Banking Companies, Foreign Banks, Regional Rural Banks and Cooperative Banks. (e) Audit of Statutory Corporations established under special enactments. (f) Audit of Financial Institutions established under special enactments. (g) Audit of Cooperative Societies under the Central Cooperatives Act. (h) Audit of accounts of Members of Stock Exchanges under the Securities Contracts (Regulation) Act, 1956. (i) Audit of financial information given in the offer document including accounting ratios pursuant to the clarifications XIII and XIV of the Guidelines for Disclosure and Investor Protection issued by SEBI. (j) Audit/Inspection of various Mutual Funds, Financial Institutions and other entities under SEBI Regulations. (k) Audit under Sales Tax Act of different States. (l) Tax audit under Section 44AB of the Income-tax Act, 1961 . (m) Audit/Clarification under Sections 80HH , 80HHA, 80HHB , 80HHBA , 80HHC, 80HHD , 80HHE , 80-I and 80-IA of the Income-tax Act, 1961 . (n) Audit of Accounts of Political parties under Section 13A of the Income-tax Act, 1961. (o) Audit under Section 142(2A) of the Income-tax Act, 1961. (p) Audit under Section 35D and 35E of the Income-tax Act, 1961. (q) Audit under Section 33AB (Tea Development Account) of the Income-tax Act, 1961. (r) Audit under Section 33ABA (Site Restoration Fund) of the Income-tax Act, 1961. (iv) The above audit/accounting services rendered by practising chartered accountants are only illustrative and not exhaustive. Service tax on other than accounting and auditing services rendered by practising chartered accountants has been exempted ( Notification No. 57/98-S.T., dated 7-10-1998 refers). 4. Procedure to be followed by the person(s) rendering above categories of services : (A) General : As per Section 69 of the Finance Act, 1994 read with Rules 3 and 4 of the Service Tax Rules, 1994 , as amended, every person liable for paying the service tax shall make an application to the concerned Central Excise Officer appointed under Rule 3 in Form ST-1 for Registration within a period of 30 days from the date on which the service tax under Section 66 of Finance Act, 1994 (32 of 1994) is levied. Notification No. 54/98-S.T., dated 7-10-1998 may be referred in this regard. (B) Registration : (i) The assessee will apply for registration in respect of above category of services in Form ST-1 (Annexure-I) to the Superintendent (Tech) of the jurisdictional Assistant Commissioner Office in all cases except Division I II, Indore where the assessee shall get registration from Superintendent Range-VI and Superintendent Range-Dhar respectively and get acknowledgement on the duplicate copy of the ST-1 from the concerned Superintendent. (ii) The Central Excise officer shall after due verification of the application form, grant a certificate of registration in Form ST-2 within 7 days from the date of receipt of the application. If the registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted. The registration No. will be allotted in the following manner :- Service Tax Name of the Range Name of Service Sr. No. Year (C) Payment of Service Tax (1) The service tax on the value of taxable services received during any calendar month shall be paid to the credit of the Central Government by the 25th of the month immediately following the said calendar month. However, where the assessee is an individual or proprietary firm or partnership firm, the service tax on the value of taxable services received during any quarter shall be paid to the credit of the Central Government by the 25th of the month immediately following the said quarter. Explanation : Quarter means the period between 1st January to 31st March or 1st April to 30th June or 1st July to 30th September or 1st October to 31st December of a financial year. (2) The assessee shall deposit the service tax liable to be paid by him with the bank designated by the Central Board of Excise and Customs for this purpose in Form TR 6 or in any other manner prescribed by the Central Board of Excise and Customs. (3) Where an assessee has paid to the credit of Central Government service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received. (4) Where an assessee is, for any reason, unable to correctly estimate on the date of deposit the actual amount payable for any particular month or quarter, as the case may be, the assessee may make a request in writing to the Central Excise Officer to make a provisional assessment of the tax on the basis of the amount deposited and the Central Excise Officer, may, on receipt of such request, order provisional assessment of tax and where the Central Excise Officer makes a provisional assessment, the provisions of Central Excise Rules, 1944 relating to provisional assessment, except so far as it relates to execution of bond, shall, so far as may be, apply to such assessment. (5) Where an assessee under sub-rule (4) requests for a provisional assessment he shall file a statement giving details of the difference between the service tax deposited and the service tax liable to be paid for each month in a memorandum in Form ST accompanying the quarterly or half yearly return, as the case may be. (6) Where the assessee submits a memorandum in Form ST 3A under sub-rule (5), it shall be lawful for the Central Excise Officer to complete the assessment, wherever he deems it necessary, after calling such further documents or records as deemed necessary and proper in the circumstances of the cases. Explanation :- For the purposes of this rule and Rule 7, Form TR 6 means a memorandum or challan referred to in Rule 92 of the Treasury Rules of the Central Government. (7) Returns - (i) Every assessee shall submit a half-yearly return in Form `ST 3 , as the case may be, along with a copy of the Form TR 6 , in triplicate for the months covered in the half-yearly return. (ii) Every assessee shall submit the half yearly return by the 25th of the month following the particular half year. (iii) The Central Excise Officer shall thereupon, assess the service tax payable including interest, if any, payable thereon and complete the assessment memorandum. A copy of the return so assessed shall be sent to the assessee. (iv) The service tax determined and paid by the assessee shall be adjusted against the service tax assessed by the Central Excise Officer under sub-rule (3) and where the service tax so assessed is more than the service tax determined and paid by the assessee, the assessee shall pay the deficiency, along with amount of interest determined thereon, within ten days of the receipt of the copy of the return from the Central Excise. (v) The payment of service tax should be deposited under Head 0044 by way of a TR 6 challan. Minor head of payment shall be intimated shortly. (E) Appellate Mechanism Appellate mechanism relating to Central Excise have been made applicable for the purpose of Service Tax also with necessary modification. (F) Administrative Machinery for collection of Service Tax (i) Collection of Service Tax in this Commissionerate will be with Assistant Commissioner of Central Excise having locational jurisdiction over the assessee. (ii) Certificate of registration would be issued by the Superintendent (T) of the Divisional Office in all cases except Division Indore-I and Indore-II where Superintendent Range-VI and Superintendent Range Dhar respectively will issue such certificate. (iii) The powers of assessment under Sections 72, 73 , 74 of Chapter 5 of the Finance Act, 1994 dealing with the best judgment assessment, value of taxable service escaping assessment rectification of mistakes will be exercised by Assistant Commissioner. However, where period of 5 years is involved under Section 73 of Finance Act, 1994 (32 of 1994) , Commissioner will exercise the powers. (iv) For the purpose of provisional assessment whenever a request is made, the Assistant Commissioner will make an order for provisional assessment of the tax. (v) All the persons liable to pay Service Tax are requested to apply for registration immediately to the officers who is assigned for the said particular services as above at 4(F)(ii) above and to comply with the provisions of service tax contained in Finance Act, 1994 and Rules made thereunder. If they have any difficulty they may contact to the jurisdictional Assistant Commissioner. They may also contact Assistant Commissioner (T), Central Excise, Commissionerate, Indore on Phone No. (O) 446 308, 446 358.