Reverse Charge (Tax Shift)

1. Reverse Charge (Tax Shift)

• Normally, service tax is payable by person providing the service.

• Section 68(2) makes provision for reverse charge i.e. making person receiving the service liable to pay tax.

• Provision can be made that part of tax will be paid by service receiver and part by service provider.

• Provisions relating to reverse charge are contained in Notification No. 30/2012-ST dated 20-6-2012. See Appendix 2 for tax of the Notification.

2 Issues relating to reverse charge

•The small service provider exemption of ` 10 lakhs not available when tax is payable under reverse charge.

• Cenvat credit cannot be used to pay tax by service receiver. Service tax as to be paid by cash only i.e. GAR-7 challan.

• Once paid, Cenvat credit can be taken if otherwise it is his eligible ‘input service’.

• Tax should be paid under service tax registration number of service receiver and included in his return as he is liable to pay service tax.

• Service tax is payable by service receiver when actual payment is made to service provider and not on receipt of Invoice from service provider. However, if payment is not made to service provider within 6 months, service tax is anyway payable. Interest is also payable.

• Exception is that when service provider is outside India is Associated Enterprise (group company with at least 25% common interest), the service receiver is liable to pay service tax as soon as the account of service provider is credited in books of account of service receiver.

FAQ

We are liable to pay service tax under reverse charge. Our service provider has agreed to pay entire payment of service tax liability. He is willing to give an undertaking in that regard. In that case, are we liable to pay service tax?

Please do not enter into such short cuts. Only person who is liable to pay service tax should pay the same.

3. Billing by service provider

• Service provider should charge only his part of service tax

• Service receiver to pay service tax of his part by GAR-7 challan

• Service receiver liable for only his part and not entire amount, even if service provider does not charge his portion of service tax.

• A statutory liability cannot be shifted by mutual agreement. If statutory liability is of service receiver, he alone is liable..

FAQ

We have received works contract service from a firm. The service provider has charged entire amount of service tax and we have paid the same. Are we still liable to pay service tax?

Legal liability is of service receiver. That liability does not disappear even assuming that the service provider has paid the service tax. The department can insist on payment of service tax from you [In respect of past, may be you can get away by claiming that it is only procedural mistake and no revenue loss. However, for future, please do not do it].

4. Reverse charge with condition of non-availability of Cenvat

• In some services (e.g. GTA, renting or hire of motor vehicle designed to carry passengers), the abatement is subject to condition of non-availment of Cenvat credit by service provider (not by service receiver)

• A certificate should be obtained from the service provider about non-availment of Cenvat credit.

• Such certificate is not required in case of hire or renting of motor vehicle, but still advisable to get it.

• In case of renting of motor vehicle, in most of the case, Cenvat credit is not available. Hence, it is cost to company.

5. Business Entity and Body Corporate

• In some cases, reverse charge is applicable only when service receiver is business entity registered as ‘body corporate’.

• “Business entity” means any person ordinarily carrying out any activity relating to industry, commerce or any other business or profession. Thus, Government, charitable organisation is not ‘business entity’.

• Body Corporate – Company, LLP, Cooperative Society is Body Corporate – Firm, HUF, Trust is not ‘Body Corporate’ [Society registered under Societies Act is legally not ‘body corporate’].

6. Reverse charge in works contract service

• 50% tax by service receiver if service provider of works contract service is individual, HUF, proprietary or partnership firm or AOP

• AND service receiver is business entity incorporated as body corporate.

• 50% service tax is payable by service provider and 50% by service receiver. The service receiver liable for 50% even if service provider does not charge service tax.

• Construction, Job work with material, AMC covered under works contract.

7. Reverse charge in case of manpower supply and security service

• 75% tax by service receiver if service provider of manpower supply is individual, HUF, proprietary or partnership firm or AOP

• AND service receiver is company or business entity incorporated as body corporate. Balance 25% by service provider.

8. Issues relating to manpower supply service

• Service should be manpower supply i.e. under command of Principal Employer.

• “Supply of manpower” means supply of manpower, temporarily or otherwise, to another person to work under his superintendence or control.’ [Rule 2(g) of Service Tax Rules, inserted w.e.f. 1-7-2012].

• Cleaning service, piece basis or job basis contract can be ‘manpower supply service’ only if the labour work under superintendence or control of Principal Employer.

• Service tax payable on salary plus PF, ESI plus commission of labour contractor.

• Persons sent on deputation is manpower supply service.

• Person approaching himself and company appointing him on contract basis is not manpower supply service.

9. Reverse charge in renting or hire of Motor vehicle designed to carry passengers

• Reverse charge when renting to a person who is not in similar line of business.

• Service Provider should be HUF, Individual, firm

• Service receiver – Business entity registered as body corporate

• Tax on 40%, if Cenvat credit is not availed by the service provider – No Cenvat credit in most of the cases – hence cost to company.

• If motor vehicle is taken on hire (operating lease) without driver, it is ‘transfer of right to goods’. Then it is deemed sale of goods and Vat will apply – not service tax.

FAQ

We are a company. Our employees engage motor vehicle on hire when they go on tour for official purposes. On return, they claim reimbursement of the bill. Is the company liable to pay service tax under reverse charge?

Though company is reimbursing the Bill, the service receiver is the employee, if the Bill of the service provider is in name of employee [In fact, the motor vehicle operator is not likely to know that the service receiver is company and will have to charge service tax in normal course, if he is otherwise liable]. In such cases, the company will not be liable under reverse charge. However, if the bill is in name of the company, reverse charge will apply, if the service provider is individual, HUF etc.

10. Goods Transport Agency

•  Tax when consignment note issued. Simple transport of goods service (without issue of consignment note) is not a GTA service.

• Person liable to freight is liable to pay service tax on GTA if he is body corporate, factory, registered dealer under Central excise, society, cooperative society, partnership firm (registered or not).

• Tax on 25% if GTA does not avail Cenvat Credit – Hence service receiver should get certificate from him that he has not availed Cenvat credit.

• Otherwise tax on 100% value.

• GTA is liable to pay service tax if (a) person liable to pay freight is individual or HUF (b) Person liable to ay freight is outside taxable territory (like J&K, Nepal, Bhutan, Bangla Desh, Pakistan etc.).

11. Support Services of Government or Local Authority

• Sovereign and statutory activities not subject to service tax

• Support services like testing, police protection, Advertisement, construction, Outsourcing type services provided by Government to business entity

•  Business Entity liable for entire service tax

12. Import of Service

• Service tax is payable only if Place of Provision of Service is in taxable territory (i.e. India plus 200 nautical miles inside the sea minus J&K)

•Service provider should be outside taxable territory and service receiver should be located in taxable territory

• Service tax is payable on gross amount including TDS

13.  Other services under reverse charge

• Insurance Agent.

• Services of Advocate or Advocate Firms or Arbitral Tribunal to Business Entity having turnover over ` 10 lakhs. Then Business Entity is liable to pay entire service tax.

• Sponsorship by Body corporate or Partnership Firm

• Services of non-executive and independent directors

14. No reverse charge, if service provided prior to 1-7-2012

• In case of some services, reverse charge mechanism is applicable w.e.f. 1-7-2012 i.e. service tax is payable (partly or wholly) by service receiver..

•  In view of section 67A (which is effective from 28-5-2012), service tax will not be payable by service receiver under reverse charge mechanism, if service was provided prior to 1-7-2012, even if payment is received later.

• This will be so even if invoice was issued after 1st July 2012. However, to avoid controversy, it is advisable to date invoice prior to 30-6-2012 [Note that Point of Taxation Rules cannot override provisions of section 67A].

15.  Reverse charge provisions at a glance

The provisions are summarised below:

Sr. No.	Description of service	Service Provider	Service Receiver	Liability of service tax
1	Services of insurance agent [Rule 2(d)(i)(	Insurance Agent	Insurance Company	100% by insurance company
2	Services of Goods Transport Agency (GTA) of goods transport	Goods Transport Agency (one who issues consignment note)	Consignor or consignee who is (a) factory, society, registered dealer of excisable goods, body corporate, partnership firm, AOP and (b) who pays or is liable to pay freight either himself or through his agent for transportation of such goods in goods carriage	Tax payable on 25% of value if Cenvat credit has not been availed by service provider. Hence, it is necessary to obtain certificate from the service provider (GTA) that he has not availed any Cenvat credit. Otherwise, service tax will be payable on 100% of the value. Entire tax is payable by service receiver. Person liable to pay freight for transportation of goods, located in taxable territory, shall be the person who receives the service. If such person is located in non-taxable territory, the provider of service shall be liable to pay service tax.
3	Sponsorship service	Any person	Any body corporate or partnership firm located in the taxable territory	Entire tax payable by service receiver. If the receiver of service is not body corporate or partnership firm or if such body corporate or partnership firm is notlocated in taxable territory, the service provider (i.e. person receiving the sponsorship money) will be liable to pay the service tax.
4	Services of Arbitral Tribunal	Arbitral Tribunal	Business Entity	Entire tax payable by service receiver
5	Legal Services of Advocate or Advocate Firms	Individual Advocate or Advocate Firms	Business Entity having turnover exceeding ` ten lakhs per annum, located in taxable territory	Entire tax payable by service receiver
5A	Services of director to company (entry added w.e.f. 7-8-2012)	Director	Company	Entire tax payable by service receiver
6	Support Services by Government or Local Authority excludingrenting of immovable property and services specified in clauses (i), (ii) and (iii) of Section 66D(a) of Finance Act, 1994 (These cover postal, port, airport and railway services)	Government or Local Authority	Business Entity located in taxable territory	Entire tax payable by service receiver
7	Renting or hiring of motor vehicle designed to carry passengers to any person who is not in the similar line of business	Individual, HUF, proprietary or partnership firm, AOP located in taxable territory	Business entity registered as body corporate located in the taxable territory	Tax on 40% of value by service receiver and Nil by service provider. If the service provider intends to avail Cenvat credit, he can pay service tax on balance 60%. Thus, service receiver is liable to pay service tax only on 40% value.
8	Supply of Manpower for any purpose or security service (The words ‘or security service’ were added w.e.f. 7-8-2012	Individual, HUF, proprietary or partnership firm, AOP located in taxable territory	Business entity registered as body corporate located in the taxable territory	Tax on 25% of value by service provider and 75% by service receiver
9	Service portion in execution of Works Contract	Individual, HUF, proprietary or partnership firm, AOP located in taxable territory	Business entity registered as body corporate located in the taxable territory	Tax on 50% of value by service provider and 50% by service receiver
10	Services received from non-taxable territory (Import of Service)	Located in non-taxable territory	Located in taxable territory	Entire tax payable by service receiver.