[TO
BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3,
SUB-SECTION (i)]
GOVERNMENT
OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
NOTIFICATION
No. 48/2016-Service Tax
New
Delhi, the 9th November, 2016
G.S.R..... (E). - In exercise of the powers
conferred by sub-section (1), read with sub-section (2) of section 94 of the
Finance Act, 1994 (32 of 1994), the Central Government hereby makes the
following rules further to amend the Service Tax Rules, 1994,namely:-
1. (1) These rules may be called the Service Tax
(Fourth Amendment) Rules, 2016.
(2) They shall come into force on the 1 st day of
December, 2016.
2. In the Service Tax Rules, 1994,-
(i) in rule 2, in sub-rule (1),-
(a) after
clause (ccb), the following clause shall be inserted, namely:-
„(ccba) “non-assesse online recipient” means
Government, a local authority, a governmental authority or an individual
receiving online information and database access or retrieval services in
relation to any purpose other than commerce, industry or any other business or
profession, located in taxable territory;
Explanation.-
For the purposes of this clause, “governmental authority” means an authority or
a board or any other body :
(i)
set up by an Act of Parliament or a
State legislature; or
(ii)
established by Government,
with 90% or more participation by way of equity or
control, to carry out any function entrusted to a municipality under article
243Wof the Constituion;?;
(b) after
clause (ccc), the following clause shall be inserted, namely:-
‘(ccd) “online information and database access or
retrieval services” means services whose delivery is mediated by information
technology over the internet or an electronic network and the nature of which
renders their supply essentially automated and involving minimal human
intervention, and impossible to ensure in the absence of information technology
and includes electronic services such as,-
(i)
advertising on the internet;
(ii) providing cloud services;
(iii) provision of e-books, movie, music, software and other intangibles via
telecommunication networks or internet;
(iv) providing data or information, retrievable or otherwise, to any person, in
electronic form through a computer network;
(v) online supplies of digital content (movies, television shows, music, etc.);
(vi) digital data storage; and
(vii) online gaming;?;
(c) in clause (d),-
(i) in sub-clause (i),-
(a) in item (G), after
the words “taxable service”, the words “other than online information and
database access or retrieval services,” shall be inserted;
(b) after item (G), following item shall be inserted, namely:-
“(H) in relation to
services provided or agreed to be provided by way of online information and
database access or retrieval services, by any person located in a non-taxable
territory and received by any person in the taxable territory other than
non-assesse online recipient, recipient of such service;”;
(ii) in
sub-clause (ii), the following provisos shall be inserted, namely:- “Provided
that in case of online information and database access or retrieval services
provided or agreed to be provided by any person located in a non-taxable
territory and received by non-assesse online recipient, provider of service
located in a non-taxable territory shall be the person liable for paying
service tax:
Provided further that in case of online information
and database access or retrieval services provided or agreed to be provided by
any person located in a non-taxable territory and received by non-assesse
online recipient, an intermediary located in the nontaxable territory including
an electronic platform, a broker, an agent or any other person, by whatever
name called, who arranges or facilitates provision of such service but does not
provides the main service on his account shall be deemed to be receiving such
services from the service provider in non-taxable territory and providing such
services to the non-assesse online recipient except when such intermediary
satisfies all the following conditions, namely :-
(a) the
invoice or customer?s bill or receipt issued or made available by such
intermediary taking part in the supply clearly identifies the service in
question, its supplier in non-taxable territory and the service tax
registration number of the supplier in taxable territory;
(b) the
intermediary involved in the supply does not authorise the charge to the
customer or take part in its charge i.e. intermediary neither collects or
processes payment in any manner nor is responsible for the payment between the
non-assesse online recipient and the supplier of such services;
(c) the
intermediary involved in the supply does not authorise delivery;
(d) the
general terms and conditions of the supply are not set by the intermediary
involved in the supply but by the service provider:
Provided also that in case of online information and
database access or retrieval services provided or agreed to be provided by any
person located in a non-taxable territory and received by non-assesse online
recipient, any person located in taxable territory representing such service
provider for any purpose in the taxable territory shall be the person liable
for paying service tax:
Provided also that in case of online information and
database access or retrieval services provided or agreed to be provided by any
person located in a non-taxable territory and received by non-assesse online
recipient, if the service provider does not have a physical presence or does
not have a representative for any purpose in the taxable territory, the service
provider may appoint a person in the taxable territory for the purpose of
paying service tax and such person shall be liable for paying service tax:
Provided also that in case of online information and
database access or retrieval services provided or agreed to be provided by any
person located in a non-taxable territory and received by any person located in
the taxable territory, person receiving such services shall be deemed to be
located in the taxable territory if any two of the following noncontradictory
conditions are satisfied, namely :-
(a) the
location of address presented by the service recipient via internet is in
taxable territory;
(b) the
credit card or debit card or store value card or charge card or smart card or
any other card by which the service recipient settles payment has been issued
in the taxable territory;
(c) the
service recipient?s billing address is in the taxable territory;
(d) the
internet protocol address of the device used by the service recipient is in the
taxable territory;
(e) the
service recipient?s bank in which the account used for payment is maintained is
in the taxable territory;
(f) the
country code of the subscriber identity module (SIM) card used by the service
recipient is of taxable territory;
(g) the
location of the service recipient?s fixed land line through which the service
is received by the person, is in taxable territory
Provided also that in case of online information and
database access or retrieval services provided or agreed to be provided by any
person located in a non-taxable territory and received by non-assesse online
recipient, a person receiving such services shall be deemed to be a non-assesse
online recipient, if such person does not have service tax registration under
these rules.”;
(ii)
in rule 4, in sub rule (1), after third
proviso, the following proviso shall be inserted, namely:-
“Provided also that a person located in non taxable
territory liable for paying the service tax in the case of online information
and database access or retrieval services may make an application for
registration in form ST-1A for registration within a period of thirty days from
the date on which the service tax under section 66B of the Act is levied or the
person located in non taxable territory has commenced supply of taxable
services in the taxable territory in India and notwithstanding anything
contrary in these rules, the registration shall be deemed to be granted in form
ST-2A from the date of receipt of the application.”;
(iii) In
rule 4A, in sub-rule 1, after the sixth proviso, the following proviso shall be
inserted, namely:-
“Provided also that in case of online information
and database access or retrieval services provided or agreed to be provided in
taxable territory by a person located in the nontaxable territory, an invoice,
a bill or, as the case may be, challan shall include any document, by whatever
name called, whether or not serially numbered, but containing name and address
of the person receiving taxable service to the extent available and other
information in such documents as required under this sub-rule.”;
(vi) In rule 7, in sub-rule (1) after the
letters and figure “ST-3A”, the word, letters and figure “or ST-3C” shall be
inserted;
(v) After Form ST-1, the following Form shall be
inserted, namely :-
[F. No.354/149/2016 -TRU]
(Anurag Sehgal)
Under Secretary to the Government of India
Note:-
The principal rules were published in the Gazette of India, Extraordinary, Part
II, Section 3, Sub-section (i) vide notification No. 2/94-SERVICE TAX, dated
the 28th June, 1994 vide number G.S.R. 546 (E), dated the 28th June, 1994 and
last amended vide notification No. 43/2016-Service Tax, dated the 28th
September, 2016 vide number G.S.R. 923 (E), dated the 28th September, 2016.
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