Place of Provision of Services Rules 2012 Come into Effect from 1
July 2012
[Service Tax Notification No. 28 dated 20th
June 2012]
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:-
1. Short title, 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.
2. Definitions.-
In these rules, unless the context otherwise requires,-“Act” means the Finance
Act, 1994 (32 of 1994);
(a)
“account” means an account
bearing interest to the depositor, and includes a non-resident external account
and a non-resident ordinary account;
(b)
“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);
(c)
“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;
(d)
“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);
(e)
“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.;
(f)
“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;
(g)
“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.
(h)
“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.
(i)
“means of transport” means
any conveyance designed to transport goods or persons from one place to
another;
(j)
“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;
(k)
“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;
(l)
“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;
(m) “provided”
includes the expression “to be provided”;
(n)
“received” includes the
expression “to be received”;
(o)
“registration” means the
registration under rule 4 of the Service Tax Rules, 1994;
(p)
“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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
[F.No. 334 /1/ 2012-TRU]