Whenever we are appointing any professional (be it
chartered accountant, lawyers, consultant etc) then in addition to payment
of fees we also reimburse them expenses (like travel ticket cost,
hotel bills, local conveyance etc) that has been incurred by them in the course
of providing services.
A common question that arises from taxation
perspective is
1) whether the service provider is required to
charge service tax on such reimbursement amount (Service
Tax Perspective) and
2) whether the TDS is required to be deducted on
such reimbursement amount by service receiver including the amount of service
tax (Income Tax Perspective).
Service Tax Perspective
Q. Whether the service provider is required to
charge service tax on such reimbursement amount?
The above question from service tax perspective was
examined by the Delhi High Court in the case of Intercontinental
Consultants and Technocrats Pvt., Ltd Vs Union of India (2012), where the
assessee has filed a writ petition before the high court for quashing the show
cause notice issued by the service tax department for recovery of service tax
on the amount received as reimbursement by him (assessee).
The high court decided in favour of the assessee
and concluded that reimbursement of expenses received by the service provider
in the course of providing taxable services can never be considered as a part
of gross amount charged by the service provider for the service provided.
Against the order of Delhi High Court the service
tax department has filed an appeal before the Honorable Supreme Court which is
pending as on date.
In order to overcome the decision pronounced
by Delhi High Court (which is pending with Supreme Court as on date), the CBEC
has amended explanation to section 67 (w.e.f 14.05.2015 i.e the day on which
Finance Bill has received the assent of president) as below:
“Consideration” includes:
(i) ………………….
(ii) any reimbursable expenditure or cost incurred
by the service provider and charged, in course of providing or agreeing to
provide a taxable service, except in such circumstances, and subject to
such conditions, as may be prescribed.
(iii) ……………
Thus after the amendment there is no doubt that any
amount received by the service provider in form of reimbursement from
service recipient will form part of consideration and shall be liable to
service tax.
Although payment to pure agent (like payment for
stamp duty, taxes etc) will be out of the service tax net.
However the inclusion of reimbursable expenditure
as consideration for the period prior to 14.05.2015 is yet to be decided by the
Honorable Supreme Court.
Income Tax Perspective
Whether the TDS is required to be deducted on such
reimbursement amount by service receiver including the amount of service tax ?
Case
|
Billing
procedure
|
TDS
applicability
|
1
|
Same
bill consist of fees as well as reimbursement amount
|
TDS
need to be deducted on whole amount including reimbursement (Circular No. 715
dated 08/08/1995)
|
2
|
Separate
bills are raised for fees and reimbursement amount
|
TDS need
to be deducted only on amount of fees and no TDS on reimbursement (Circular No.
720 dated 30/8/1995 )
|
As far as TDS on service tax part is concerned via
CBDT Circular No. 1/2014 in F. No.275/59/2012-IT(B), Dated: January 13,
2014 it has been clarified that no TDS need to be deducted on the service
tax portion of the bill provided the amount of service tax has been shown
separately in the bill.
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