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Place of Provision of Services Rules, 2012
[ 28/2012-Service Tax dated 20.06.2012 ]
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,-
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(a)
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"Act" means
the Finance Act, 1994 (32 of 1994);
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(b)
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"Account'
means an account bearing interest to the depositor, and includes a
non-resident external account and a
non-resident ordinary account;
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(c)
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'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);
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(d)
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"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;
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(e)
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"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);
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(f)
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"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.;
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(g)
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"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;
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(h)
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"location of
the service provider" means-
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(a)
where the service provider has obtained a single registration, whether
centralized or otherwise, the premises
for which such registration has been obtained;
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(b) where the service provider is not covered
under sub-clause (a):
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(i)the location
of his business establishment;
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(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
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(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
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(iv)in the
absence of such places, the usual place of residence of the service provider
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(i)
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"location of
the service receiver" means:-
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(a) where the
recipient of service has obtained a single registration, whether centralized
or otherwise, the premises for which
such registration has been obtained;
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(b) where the recipient of service is not
covered under sub-clause (a):
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(i)the location
of his business establishment; or
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(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
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(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
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(iv)in the absence
of such places, the usual place of residence of the recipient of service.
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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.
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Explanation 2:- For the purpose of clause (i), in the case
of telecommunication service, the usual place of residence shall be the
billing address.
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(j)
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"means of
transport" means any conveyance designed to transport goods or persons from
one place to another;
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(k)
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"non-banking
financial company" means-
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(i)
a financial
institution which is a company; or
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(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
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(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;
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(l)
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"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;
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(m)
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"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;
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(n)
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"provided"
includes the expression "to be provided";
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(o)
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"received"
includes the expression "to be received";
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(p)
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"registration" means the registration under rule 4 of the
Service Tax Rules, 1994;
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(q)
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"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.
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(r)
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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.
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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.
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