Government of India
Ministry of Finance
(Department of Revenue)
Notification No. 28/2012 - Service Tax
New Delhi, the 20th June, 2012
G.S.R…..(E).- In exercise of the powers conferred by sub-section (1) of
section 66C and clause (hhh) of sub-section (2) of section 94 of the Finance
Act, 1994 and in supersession of the notification of the Government of India in
the Ministry of Finance, Department of Revenue, number
9/2005-ST, dated the 3rd
March, 2005 published in the Gazette of India Extraordinary, Part II, Section 3,
Sub-Section (i) vide number G.S.R. 151 (E) dated the 3rd March, 2005 and the
notification of the Government of India in the Ministry of Finance, Department
of Revenue, number 11/2006-ST dated the 19th May, 2006 published in the Gazette
of India Extraordinary, Part II, Section 3, Sub-Section (i) vide number G.S.R.
227 (E) dated the 19th May, 2006, except as respects things done or omitted to
be done before such supersession, the Central Government hereby makes the
following rules for the purpose of determination of the place of provision of
services, namely:-
- Short t itle, extent and commencement. - (1) These rules may be called the
Place of Provision of Services Rules, 2012.
(2) They shall come into force on 1st day of July, 2012.
- Definitions.- In these rules, unless the context otherwise requires,-
(a) “Act” means the Finance Act, 1994 (32 of 1994);
(b) “account” means an account bearing interest to the depositor, and includes a
non-resident external account and a non-resident ordinary account;
(c) “banking company” has the meaning assigned to it in clause (a) of section
45A of the Reserve Bank of India Act, 1934 (2 of 1934);
(d) “continuous journey” means a journey for which a single or more than one
ticket or invoice is issued at the same time, either by one service provider or
through one agent acting on behalf of more than one service provider, and which
involves no stopover between any of the legs of the journey for which one or
more separate tickets or invoices are issued;
(e) “financial institution” has the meaning assigned to it in clause (c) of
section 45-I of the Reserve Bank of India Act,1934 (2 of 1934);
(f) “intermediary” means a broker, an agent or any other person, by whatever
name called, who arranges or facilitates a provision of a service (hereinafter
called the ‘main’ service) between two or more persons, but does not include a
person who provides the main service on his account.;
(g) “leg of journey” means a part of the journey that begins where passengers
embark or disembark the conveyance, or where it is stopped to allow for its
servicing or refueling, and ends where it is next stopped for any of those
purposes;
(h) “location of the service provider” means-
(a). where the service provider has obtained a single registration, whether
centralized or otherwise, the premises for which such registration has been
obtained;
(b). where the service provider is not covered under sub-clause (a):
(i) the location of his business establishment; or
(ii) where the services are provided from a place other than the business
establishment, that is to say, a fixed establishment elsewhere, the location of
such establishment; or
(iii) where services are provided from more than one establishment, whether
business or fixed, the establishment most directly concerned with the provision
of the service; and
(iv) in the absence of such places, the usual place of residence of the service
provider.
(i) “location of the service receiver” means:-
(a). where the recipient of service has obtained a single registration, whether
centralized or otherwise, the premises for which such registration has been
obtained;
(b). where the recipient of service is not covered under sub-clause (a):
(i) the location of his business establishment; or
(ii) where services are used at a place other than the business establishment,
that is to say, a fixed establishment elsewhere, the location of such
establishment; or
(iii) where services are used at more than one establishment, whether business
or fixed, the establishment most directly concerned with the use of the service;
and
(iv) in the absence of such places, the usual place of residence of the
recipient of service.
Explanation:-. For the purposes of clauses (h) and (i), “usual place of
residence” in case of a body corporate means the place where it is incorporated
or otherwise legally constituted.
Explanation 2:-. For the purpose of clause (i), in the case of telecommunication
service, the usual place of residence shall be the billing address.
(j) “means of transport” means any conveyance designed to transport goods or
persons from one place to another;
(k) “non-banking financial company” means-
(i) a financial institution which is a company; or
(ii) a non-banking institution which is a company and which has as its principal
business the receiving of deposits, under any scheme or arrangement or in any
other manner, or lending in any manner; or
(iii) such other non-banking institution or class of such institutions, as the
Reserve Bank of India may, with the previous approval of the Central Government
and by notification in the Official Gazette specify;
(l) “online information and database access or retrieval services” means
providing data or information, retrievable or otherwise, to any person, in
electronic form through a computer network;
(m) “person liable to pay tax” shall mean the person liable to pay service tax
under section 68 of the Act or under sub-clause (d) of sub-rule (1) of rule 2 of
the Service Tax Rules, 1994;
(n) “provided” includes the expression “to be provided”;
(o) “received” includes the expression “to be received”;
(p) “registration” means the registration under rule 4 of the Service Tax Rules,
1994;
(q) “telecommunication service” means service of any description (including
electronic mail, voice mail, data services, audio text services, video text
services, radio paging and cellular mobile telephone services) which is made
available to users by means of any transmission or reception of signs, signals,
writing, images and sounds or intelligence of any nature, by wire, radio, visual
or other electro-magnetic means but shall not include broadcasting services.
(r) words and expressions used in these rules and not defined, but defined in
the Act, shall have the meanings respectively assigned to them in the Act.
- Place of provision generally.- The place of provision of a service shall be
the location of the recipient of service:
Provided that in case the location of the service receiver is not available in
the ordinary course of business, the place of provision shall be the location of
the provider of service.
- Place of provision of performance based services.- The place of provision of
following services shall be the location where the services are actually
performed, namely:-
(a) services provided in respect of goods that are required to be made
physically available by the recipient of service to the provider of service, or
to a person acting on behalf of the provider of service, in order to provide the
service:
Provided that when such services are provided from a remote location by way of
electronic means the place of provision shall be the location where goods are
situated at the time of provision of service:
Provided further that this sub-rule shall not apply in the case of a service
provided in respect of goods that are temporarily imported into India for
repairs, reconditioning or reengineering for re-export, subject to conditions as
may be specified in this regard.
(b) services provided to an individual, represented either as the recipient of
service or a person acting on behalf of the recipient, which require the
physical presence of the receiver or the person acting on behalf of the
receiver, with the provider for the provision of the service.
- Place of provision of services relating to immovable property.- The place of
provision of services provided directly in relation to an immovable property,
including services provided in this regard by experts and estate agents,
provision of hotel accommodation by a hotel, inn, guest house, club or campsite,
by whatever, name called, grant of rights to use immovable property, services
for carrying out or co-ordination of construction work, including architects or
interior decorators, shall be the place where the immovable property is located
or intended to be located.
- Place of provision of services relating to events.- The place of provision of
services provided by way of admission to, or organization of, a cultural,
artistic, sporting, scientific, educational, or entertainment event, or a
celebration, conference, fair, exhibition, or similar events, and of services
ancillary to such admission, shall be the place where the event is actually
held.
- Place of provision of services provided at more than one location.-Where any
service referred to in rules 4, 5, or 6 is provided at more than one location,
including a location in the taxable territory, its place of provision shall be
the location in the taxable territory where the greatest proportion of the
service is provided.
- Place of provision of services where provider and recipient are located in
taxable territory.- Place of provision of a service, where the location of the
provider of service as well as that of the recipient of service is in the
taxable territory, shall be the location of the recipient of service.
- Place of provision of specified services.- The place of provision of
following services shall be the location of the service provider:-
(a) Services provided by a banking company, or a financial institution, or a
non-banking financial company, to account holders;
(b) Online information and database access or retrieval services;
(c) Intermediary services;
(d) Service consisting of hiring of means of transport, upto a period of one
month.
- Place of provision of goods transportation services.- The place of provision
of services of transportation of goods, other than by way of mail or courier,
shall be the place of destination of the goods:
Provided that the place of provision of services of goods transportation agency
shall be the location of the person liable to pay tax.
- Place of provision of passenger transportation service.- The place of
provision in respect of a passenger transportation service shall be the place
where the passenger embarks on the conveyance for a continuous journey.
- Place of provision of services provided on board a conveyance.- Place of
provision of services provided on board a conveyance during the course of a
passenger transport operation, including services intended to be wholly or
substantially consumed while on board, shall be the first scheduled point of
departure of that conveyance for the journey.
- Powers to notify description of services or circumstances for certain
purposes.- In order to prevent double taxation or non-taxation of the provision
of a service, or for the uniform application of rules, the Central Government
shall have the power to notify any description of service or circumstances in
which the place of provision shall be the place of effective use and enjoyment
of a service.
- Order of application of rules.- Notwithstanding anything stated in any rule,
where the provision of a service is, prima facie, determinable in terms of more
than one rule, it shall be determined in accordance with the rule that occurs
later among the rules that merit equal consideration.
(Rajkumar Digvijay)
Under Secretary to the Government of India
[F.No. 334 /1/ 2012-TRU]
|