[TO BE PUBLISHED IN THE GAZZETE OF
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:-
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,-
(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
(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.
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
(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]
(Rajkumar Digvijay)
Under Secretary to the Government of India