3. Current Tax Cost in India
Intra-State
Ex. Duty – 12%
Edu. Cess – 3%
VAT– 5%/12.5%
Imports
Customs Duty
Basic – 10%
CVD – 12%
Ed. Cess – 3%
Service Provider
Serv. Tax – 12.36%
Factory
Retailer
Dealer
Toll Manufacturer
Goods Transporter
Serv. Tax-12.36%
Interstate purchase
(CST)
Stock transfer
(No tax)
Octroi – 0.5 to 5%
Inter-State
Ex. Duty – 12%
Edu. Cess – 3%
CST – 2%
Local purchase
VAT – 5%/12.5%
Other
Service Provider
Serv. Tax – 12.36%
Local purchase
VAT – 5%/12.5%
Other
Service Provider
Serv. Tax – 12.36%
Central Levy State Levy
VAT rate may range from 12.5-15% depending on the State
-Credit not fungible between State and Centre;
resulting in a cascading impact of taxes
- Cumulative burden of Indirect Taxes in India – 28%
to 44% (approx.)
4. 4
Excise duty
Service tax
VAT (State Sales tax)
VAT (State Sales tax)
Central Sales tax
Entry tax
Octroi
Addnl. duty of Customs
Excise duty
Service tax
No Credit
Current Taxes and Credits
Current Taxes and Credits
5. Constitutional Framework...
Taxes levied by Central Government and State Government(s)
Authority to levy a tax is derived from the Constitution of India
Which allocates power to levy various taxes between the Centre
and State
Article 265 of the Constitution which states that "No tax shall be
levied or collected except by the authority of law”
Article 246 of the Indian Constitution, distributes legislative
powers including taxation, between the Parliament of India and
the State Legislature
Schedule VII enumerates use of three lists;
List - I Where the parliament is competent to make laws
List - II Where only the state legislature can make laws
List - III Where both the Parliament and the State Legislature can
make laws upon concurrently
5
6. ...Constitutional Framework
Union List State List Concurrent List
• Income Tax
• Custom Duty
• Excise Duty
• Corporation Tax
• Service tax
• Central Sales Tax
• Stamp duty in respect
of bills of exchange,
cheques, promissory
notes, etc
• Taxes on lands and
buildings
• Excise duty on
alcoholic liquor etc
• Entry tax
• Sales Tax
• Tolls
• Luxury Tax
• Stamp duty in respect
of documents other
than those specified in
the provisions of List I
• Stamp duties other
than duties or fees
collected by means of
judicial stamps, but
not including rates of
stamp duty
6
The constant blurring of taxing jurisdiction between the Centre and the
States has necessitated multiple Constitutional challenges
7. Constitutional Amendment Bill
Introduction of Article 246A in the Constitution:
“Parliament and the Legislature of every State, have power
to make laws with respect to goods
and services tax imposed by the Union or by that State
respectively.
Provided that Parliament has exclusive power to make laws
with respect to goods and services tax where the supply of
goods, or of services, or both takes place in the course of
inter-State trade or commerce.”
8. 8
Goods Vs. Services
Lines between the taxation of Goods & Services is constantly blurring
Duality of Charge
Sr.
No.
Activity Customs
duty
Central /
State Excise
duty
Service
tax
VAT / CST
1. Intellectual Property
Services
2. Import of Designs, Technical
Know etc..
3. Works Contract
4. Construction Services
5. Manufacture of Products
liable to State Excise
Duality of charge – pre negative list
9. Discrimination between manufacturers, service providers and traders
Non-uniform application of exemptions, credit provisions, etc.
Cascading impact of taxes
Multiple causes of irrecoverable tax costs
Accumulation of credits
Non-transferability – lack of fungibility
Inverted duty structures
Rate structure - no uniformity
no clear basis on which effective rates determined
Non availability of credits
Basis of levy of Service Tax was uncertain and variable
Rendition / performance
Consumption / use
Receipt
Other pain points in the current system
12. Rationale for Negative List…
First Concept Paper for Public Debate (August 2011)
“There are advantages in moving towards negative list at an
earlier time in order to gain useful experience in its implementation
and minimize the impact of the mammoth changes that GST may
usher”
Revised Concept Paper on Taxation of Services based on
Negative List (November 2011)
“Introduction of Negative List at an earlier stage will pave the way
for the smooth transition to the GST, and significantly ease the
challenges arising out of implementing the GST.”
13. …Rationale for Negative List
FM’s speech (2012):
“At the end of June this year, this tax will attain adulthood by completing
18 years. It is therefore time to shift gears and accelerate ahead.
However, service tax needs to confront two important challenges to
sustain the journey. These are:
The share of services in taxes remains far below its potential. There is a
need to widen the tax base and strengthen its enforcement;
Service Tax law is complex and sometimes avoidably different from
Central Excise. We need to bring the two as close as possible in the light
of our eventual goal of transition to GST.”
15. Enactment of Finance Act, 2012
Provisions in Finance Bill enacted as Finance Act,
2012 on May 28, 2012
Negative list provisions to come into force from a date
to be notified
The Legislative scheme for the levy of Service Tax
stands overhauled
16. TaxableServices
ExemptServices - Threshold
Negative list + exempt
116
Taxable
Services
Approach – Selective Vs Negative List
Selective Approach –
selected services are taxable
Negative List – all
services are taxable
18. Potential Revenue Impact
Effective percentage of entire service sector that is covered
under the tax net = 20-25% (First Concept Paper)
Estimated net revenue gain consequent to changes in the Union
Budget 2012-13, relating to Indirect Taxes, estimated at Rs.
45,940 crore (Budget Speech 2012-13)
Service tax changes – Rs. 18,660 crore additional revenue
Total Service Sector
(approx. 57% of
GDP) (A)
40% remains in the
tax net
40% attributable to
the Informal sector
(under threshold
limit)
60% remains
taxable
(20-25% of A)
60% covered under
the negative list,
exemptions
19. Change in provisions – Finance Act
Section 65 - Definitions
Section 65A - Classification
Section 66 – Charging Section
Section 66A – Charging Section in
case of import of services
Section 65B - Definition
Section 66B – Charging Section
Section 66F - Classification
Section 66C – Place of Provision
Section 66D – Negative List
Section 66E – Declared Services
Section 67A – Rate and Value
Following provisions will cease to
exist from a date to be notified
Following provisions will come into
force from a date to be notified
Section 68 – Payment of Service tax
Section 66C – Place of Provision
Current Provisions under
Finance Act
Provisions under Finance Act
20. Charging Section
Old charging provision (Section
66)
“There shall be levied a tax
(hereinafter referred to as the
service tax) at the rate of twelve
per cent. of the value of taxable
services referred to in sub-
clauses [ ] of clause (105) of
section 65 and collected in such
manner as may be prescribed.”
New charging provision (Section
66B)
“There shall be levied a tax
(hereinafter referred to as the
service tax) at the rate of twelve
per cent. on the value of all
services, other than those
services specified in the
negative list, provided or agreed
to be provided in the taxable
territory by one person to
another and collected in such
manner as may be prescribed.”
21. ‘Service’…
Means Includes But shall not include
- Any activity
- Carried out by
a person for
another
- For
consideration
-Includes a declared service
1. Right to use immovable property
2. Construction of a complex, building,
civil structure or a part thereof;
including a complex or building
intended for sale to a buyer, wholly or
partly except where consideration is
received prior completion
3. Temporary transfer or permitting the
use or enjoyment of any intellectual
property right
4. Information technology software
services
5. Obligation to refrain from an act, or to
tolerate an act or a situation, or to do
an act
6. Service in relation to lease or hire of
goods and hire purchase transactions
7. Execution of Works Contracts
8. Service portion in the serving of foods
or other article of human consumption
-any activity that constitutes merely a
transfer in title of goods or immovable
property by way of sale, gift or in any
other manner;
-such transfer, delivery or supply of any
goods which is deemed to be a sale
within the meaning of clause (29A) of
Article 366 of the Constitution;
- a transaction in money or actionable
claim;
- any service provided by an employee to
an employer in the course of or in relation
to his employment;
- fees taken in any Court or a tribunal
established under any law for the time
being in force
- by a Constitutional authority under the
Indian Constitution or a member of an
Indian Legislature or a local self-
government in that capacity
22. Country Definition of service
Canada
(Section 123(1) of
the Excise Tax Act)
Service means anything other than
Property,
Money, and
Anything that is supplied to an employer by a person who is
or agrees to become an employee of the employer in the
course of or in relation to the office or employment of that
person.”
New Zealand
(Section 2 of the
GST Act)
Services has been defined to mean “Anything which is not goods
or money”
Singapore
(Section 10 of the
GST Act )
‘Supply of services’ means “anything which is not a supply of
goods but is done for a consideration (including, if so done, the
granting, assignment or surrender of any right)”
United Kingdom
(Section 5 of the
Value Added Tax
Act, 1994 )
‘Supply of services’ is defined as “anything which is not a supply
of goods but is done for a consideration (including, if so done, the
granting, assignment or surrender of any right) is a supply of
services.”
Definition of ‘Service’ – other jurisdictions
23. Negative List of Services...
Sr.
No.
Description of services which are not liable to Service Tax
1. Services by Government or a local authority (excluding certain specified
services)
2. Services by the Reserve Bank of India
3. Services by a foreign diplomatic mission located in India
4. Services relating to agriculture (only certain specified services covered)
5. Trading of goods
6. Any process amounting to manufacture or production of goods. “Process
amounting to manufacture or production of goods" has been defined to as a
process on which duties of excise are leviable under section 3 of the CE Act,
1944 or any process amounting to manufacture of alcoholic liquors for
human consumption on which duties of excise are leviable under any State
Act
7. Selling of space or time slots for advertisements other than advertisements
broadcast by radio or television. ‘Advertisement’ has been specifically
defined.
8. Service by way of access to a road or a bridge on payment of toll charges
24. ...Negative List of Services...
Sr.
No.
Description of services which are not liable to Service Tax
9. Betting, gambling or lottery. The term ‘betting or gambling’ has been
specifically defined.
10. Admission to entertainment events or access to amusement facilities.
11. Transmission or distribution of electricity by an electricity transmission or
distribution utility. The term ‘electricity transmission or distribution utility’ has
been specifically defined.
12. Services by way of pre-school education, higher secondary school
education, education as a part of a curriculum for obtaining a qualification
recognised by any law and vocational education course.
13. Services by way of renting of residential dwelling for use as residence. The
term ‘renting’ has been specifically defined.
14. Services by way of extending deposits, loans or advances in so far as the
consideration is represented by way of interest or discount or inter se sale or
purchase of foreign currency amongst banks or authorised dealers of foreign
exchange or amongst banks and such dealers
25. ...Negative List of Services
Sr.
No.
Description of services which are not liable to Service Tax
15. Service of transportation of passengers, with or without accompanied
belongings, by a stage carriage; railways in a class other than first class or
an air-conditioned coach; metro, monorail or tramway; inland waterways;
public transport, other than predominantly for tourism purpose, in a vessel of
less than fifteen tonne net; and metered cabs, radio taxis or auto rickshaws
16. Services by way of transportation of goods by road, by an aircraft or a
vessel from a place outside India to the first customs, or by inland
waterways (subject to certain exceptions)
17. Funeral, burial, crematorium or mortuary services including transportation of
the deceased.
26. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
1. Services provided to the United Nations or a specified international organization
2. Health care services by a clinical establishment, an authorised medical practitioner…
3. Services by a veterinary clinic in relation to health care of animals or birds
4. Services by an entity registered under Section 12AA of the IT Act ie charitable activities.
5. Services of- (a) renting of precincts of a religious place meant for general public; or (b)
conduct of any religious ceremony.
6. Services provided to any person other than a business entity by -
(a) an individual as an advocate; or
(b) a person represented on and as arbitral tribunals.
7. Services of technical testing or analysis of newly developed drugs, including vaccines
and herbal remedies, on human participants by a clinical research organization...
8. Services by way of training or coaching in recreational activities relating to arts, culture
or sports.
Exempted Services...
27. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
9. Services provided-
(a) to an educational institution by way of catering under any centrally assisted mid – day
meals scheme sponsored by Government; (b) to or by an institution in relation to
educational services, where the educational services are exempt from the levy of Service
Tax, by way of transportation of students or staff (c) to or by an institution in relation to
educational services, where the educational services are exempted from the levy of
service tax, by way of services in relation to admission to such education.
10. Services provided to a recognised sports body by-
(a) an individual as a player, referee, umpire, coach or manager for participation in a
tournament or championship organized by a recognized sports body;
(b) another recognised sports body;
11. Services by way of sponsorship of tournaments or championships organised,-
(a) by a national sports federation, or its affiliated federations…
(b) by Association of Indian Universities, Inter-University Sports Board, School Games
Federation of India, All India Sports Council for the Deaf, Paralympic Committee of India,
Special Olympics Bharat;
(c) by Central Civil Services Cultural and Sports Board;
(d) as part of national games, by Indian Olympic Association; or
(e) under Panchayat Yuva Kreeda Aur Khel Abhiyaan (PYKKA) Scheme;
...Exempted Services...
28. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
12. Services provided to the Government or local authority by way of erection, construction,
maintenance, repair, alteration, renovation or restoration of -
(a) a civil structure .. meant predominantly for a non-industrial or non-commercial use;
(b) a historical monument, archaeological site or remains of national importance...
(c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an
art or cultural establishment;
(d) canal, dam or other irrigation works;
(e) pipeline, conduit or plant for (i) drinking water supply (ii) water treatment (iii)sewerage
treatment or disposal; or
(f) a residential complex predominantly meant for self-use or the use of their employees
or other persons specified in the Explanation 1 to clause 44 of section 65 B of the said
Finance Act;
13. Services provided by way of erection, construction, maintenance, repair, alteration,
renovation or restoration of,-
(a) road, bridge, tunnel, or terminal for road transportation for use by general public;
(b) building owned by an entity registered under section 12AA of the Income tax Act,
1961(43 of 1961) and meant predominantly for religious use by general public;
(c) pollution control or effluent treatment plant, except located as a part of a factory; or
(d) electric crematorium;
...Exempted Services...
29. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
14 Services by way of erection or construction of original works pertaining to,-
(a) airport, port or railways;
(b) single residential unit otherwise as a part of a residential complex;
(c) low- cost houses up to a carpet area of 60 square metres per house in a housing
project approved by competent authority empowered under the ‘Scheme of Affordable
Housing in Partnership’ framed by the Ministry of Housing and Urban Poverty Alleviation,
Government of India;
(d) post- harvest storage infrastructure for agricultural produce including a cold storages
for such purposes; or
(e) mechanised food grain handling system, machinery or equipment for units processing
agricultural produce as food stuff excluding alcoholic beverages;
15. Temporary transfer or permitting the use or enjoyment of a copyright covered under
clause (a) or (b) of sub-section (1) of section 13 of the Indian Copyright Act, 1957 (14 of
1957), relating to original literary, dramatic, musical, artistic works or cinematograph
films;
16 Services by a performing artist in folk or classical art forms of (i) music, or (ii) dance, or
(iii) theatre, excluding services provided by such artist as a brand ambassador
17. Services by way of collecting or providing news by an independent journalist, Press Trust
of India or United News of India.
...Exempted Services...
30. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
18. Services by way of renting of a hotel, inn, guest house, club, campsite or other
commercial places meant for residential or lodging purposes, having declared tariff of a
room below rupees one thousand per day or equivalent;
19. Services provided in relation to serving of food or beverages by a restaurant, eating joint
or a mess, other than those having the facility of air-conditioning or central air-heating in
any part of the establishment, at any time during the year and which has a license to
serve alcoholic beverages;
20. Services by way of transportation by rail or a vessel from one port in India to another of
the 9 specified varieties of goods.
21. Services provided by a goods transport agency by way of transportation of fruits,
vegetables, eggs, milk, food grains or pulses, or where gross amount charged on a
consignment transported in a single goods carriage does not exceed Rs. 1,500; or
where gross amount charged for transportation of all such goods for a single consignee
in the goods carriage does not exceed Rs. 750
22. Renting of motor vehicles to State transport undertaking meant to carry more than twelve
passengers and to a goods transport agency, a means of transportation of goods.
...Exempted Services...
31. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
23. Transport of passengers by-
•air embarking or terminating in an airport located in the state of Arunachal Pradesh,
Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, or Tripura or at Baghdogra
located in West Bengal; or
•a contract carriage for the transportation of passengers, excluding tourism, conducted
tour, charter or hire
24. Services by way of motor vehicle parking to general public excluding leasing of space to
an entity for providing such parking facility
25. Services provided to the Government or a local authority by way of -
(a) repair of a ship, boat or vessel;
(b) effluents and sewerage treatment;
(c) waste collection or disposal;
(d) storage, treatment or testing of water for drinking purposes; or
(e) transport of water by pipeline or conduit for drinking purposes
26. Services of general insurance business provided under specified schemes
27. Services provided by an incubatee up to total business turnover of Rs. 50 lakh in an FY,
subject to the following conditions: (a) total business turnover had not exceeded Rs. 50
lakh in the preceding FY and
(b) 3 years has not lapsed from the date of entering into agreement as an incubatee
...Exempted Services...
32. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
28. Service by an unincorporated body or an entity registered as a society to own members
by way of reimbursement of charges or share of contribution
(a) as a trade union;
(b) for the provision of exempt services by the entity to third persons; or
(c) up to an amount of Rs. 5000 per month per member for sourcing of goods or services
from a third person for common use of its members in a housing society or residential
complex
29. Services by the following persons in respective capacities -
(a) a sub-broker or an authorised person to a stock broker;
(b) an authorised person to a member of a commodity exchange;
(c) a mutual fund agent or distributor to mutual fund or asset management company for
distribution or marketing of mutual fund;
(d) a selling or marketing agent of lottery tickets to a distributer or a selling agent;
(e) a selling agent or a distributer of SIM cards or recharge coupon vouchers; or
(f) a business facilitator or a business correspondent to a banking company or an
insurance company in a rural area;
...Exempted Services...
33. Sr.
No.
Description of service in respect of which exemption from payment of Service Tax
is granted
30. Carrying out an intermediate production process as job work in relation to specified
goods
31. Services by an organiser to any person in respect of a business exhibition held outside
India
32. Services by way of making telephone calls from:
(a) departmentally run public telephones;
(b) guaranteed public telephones operating only for local calls; or
(c) free telephone at airport and hospitals where no bills are being issued
33. Services by way of slaughtering of bovine animals
34. Services received from a service provider located in a non- taxable territory by: (a) the
Government, a local authority or an individual in relation to any purpose other than
industry, business or commerce; or
(b) an entity registered under section 12AA of the Income tax Act, 1961 (43 of 1961) for
the purposes of providing charitable activities.
...Exempted Services
34. Principles of classification
Concept of ‘composite service’ under Section 65A has been replaced
by ‘bundled service’
Reference to a service shall not include reference to a service used in
providing such main service
For services capable of differential treatment for any reason based on its
description, the most specific description to be preferred over a more
general description
In case of a bundled service, i.e. when provision of one service is
combined with element(s) of other service(s), taxability is to be
determined as under:
If various elements of such service are naturally bundled in the ordinary
course of business, it shall be treated as provision of the single service which
gives such bundle its essential character
If various elements of such service are not naturally bundled in the ordinary
course of business, it shall be treated as provision of the single service which
results in the highest liability of Service Tax
What is naturally bundled will be the subject matter of interpretation
35. Duality of taxes post negative list
Renting of immovable property service
Stamp duty vis-à-vis Service Tax
Supply of software
VAT and Service tax
Works Contract / Construction services
Differing schemes of abatements under VAT Laws and Service Tax law
Original Works, Contract value = Rs. 100/-
Service Tax @12.36% on Rs. 40/- (abatement of 60%)
VAT @ 14.5% on Rs. 75/- (abatement of 25% under VAT Laws)
Effective value of contract subjected to Indirect Taxes is Rs.115/- as
against an actual realization of Rs. 100/-
Taxing impact further aggravated for other than Original Works on
account of the Service tax abatement being only 40%, therefore
effective value of contract subject to Indirect Taxes is Rs.135/-
Credits of Excise Duty paid on goods not available on account of
conditions of the abatement scheme
36. Transactions newly liable?
Non-compete fees
Financial transactions for consideration – derivatives, hedges
Sale of business (slump sale transactions)
License fees / Assignment fees
Revenue share arrangements with agencies like AAI, NHAI,
MMRDA
Directors fees to non-executive directors
Ever evolving tax footprint…
37. Dichotomy between tax footprint and credit footprint
While the tax footprint has risen exponentially the credit footprint is
narrow and remains fragmented in silos
The scope of the term ‘input service’ was narrowed in 2011, to
eliminate services availed for businesses and restricted to only for
providing taxable output service, and / or used in or in relation to
manufacture
Flexibility for distribution of credit has been restricted for Input Service
Distributors
No concept of First Stage Dealer to pass through Service Tax credits
The net impact is that the cascading of taxes will rise and the sunk
costs in unutilisable credits will escalate
The potential approaches to addressing this problem could be
Enlarge the scope of input services
Grant refund of unutilisable credit
Offer fungible reflective credits – unutilised CENVAT credit can be
made available fungibly as VAT credit
39. Key taxes subsumed
Central
Central
Excise Duty
Addnl.
Excise
Duties
Excise Duty
on M&TP
Service Tax CVD
SAD
Surcharges
Cesses State
Entry Tax (not
Octroi)
Cesses and
surcharges on
goods and
services
Taxes on
lotteries,
betting,
gambling
Luxury Tax
Entertainment
Tax (except
levied by local
bodies)
VAT/Sales Tax
Dual GST
CST TO BE
PHASED
OUT
41. 41
Issue 2011 2012 Emerging Position
Expanded scope of ST Negative list introduced
Automatic refunds New scheme notified
Place of supply rules Introduced for Public debate
Time of supply rules
(POT Rules)
Notified in 2011, Amendments to
remove teething difficulties
IT Infrastructure /
Administrative structure
GST Network to be operational from
August 2012 / Single forms notified
for CED and ST
Draft legislations (Centre
& States)
No Draft legislations
Political will Many States forming a consensus
Milestones & Signals of GST
42. 42
Milestones & Signals of GST
Issue 2011 2012 Emerging Position
Transition date To be decided post discussion with
States
Constitutional
amendments
Introduced in the Lok Sabha, referred to
Standing Committee
Draft legislation Bill to be introduced
Alignment of CED and
ST rates with
proposed CGST rate
Rate of CED & CE increased to 12% -
expected rate of CGST is 8% to 10%
Reduction in number
of CED exemptions
Reduction in number of exemptions
from CED
CST No reduction in CST rate
CST compensation Centre has refused to grant CST
compensation
43. The information contained herein is of a general nature and is not intended to address the circumstances of any particular
individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such
information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on
such information without appropriate professional advice after a thorough examination of the particular situation.
The greater the time gap
between the introduction of
negative list and the
introduction of GST, the greater
the burden for industry and
consumers
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