1. Service tax authorities, of late, have been issuing notices to various borrowers of External Commercial Borrowings (ECB’s) from foreign branches of Indian banks and holding them liable to pay <a rel=”nofollow” onclick=”javascript:pageTracker._trackPageview(‘/outgoing/article_exit_link’);” href=”http://www.taxmann.net/STOnlineWeb/NewHomePage/Home.aspx?pId=160″>Service tax</a> from September 10, 2004 under section 65(12)(a)(ix) of the Finance Act, 1994 which covers ECBs.

According to the borrower, the responsibility of paying service tax is of the service provider which is the foreign branch of the Indian bank and, hence, the Indian bank having a permanent establishment in India, is supposed to pay and not the borrower.

The contention of the service tax authorities is partially correct after coming into effect of section 66A of the Finance Act, 1994 from April 18, 2006.

Until the coming into effect of section 66A, the liability and obligation to pay service tax was that of Indian bank and not that of the borrower. Contrary to the contention of the service tax authorities, even under rule 2(1)(d)(iv) of the said Rules, effective from August 16, 2002 and June 16, 2005 respectively, the borrower cannot be made liable for the payment of service tax.

2. Rule 2(1)(d)(iv) reads as follows :—

‘Person liable for paying the service tax’ means,—

(iv) in relation to any taxable service provided or to be provided by a person, who has established a business or has a fixed establishment from which the service is provided or to be provided, or has his permanent address or usual place of residence, in a country other than India, and such service provider does not have any office in India, the person who receives such service and has his place of business, fixed establishment, permanent address or, as the case may be, usual place of residence, in India.”

From the aforesaid provisions, it would be clear that until April 18, 2006, the requirement under rule 2(1)(d)(iv) was that only in case where the service provider did not have any office in India, the person receiving taxable service was liable for paying service tax involved. In the cited case, the Indian Bank having its registered and head office in India, and a branch in a foreign country cannot be said to be a service provider who did not have an office in India.

After coming into effect of section 66A, rule 2(1)(d)(iv), substituted with effect from April 18, 2006 by the Service Tax (Second Amendment) Rules, 2006, reads as follows :—

“‘Person liable for paying the service tax’ means -

(iv) in relation to any taxable service provided or to be provided by any person from a country other than India and received by any person in India under section 66A of the Act, the recipient of such service;”

As such, until April 17, 2006, the borrower was not a ‘person liable for paying service tax’ within the meaning of the Act and the said Rules, including rule 2(1)(d)(iv) thereof.

It is relevant to note herein that the phrase ‘does not have any office in India’, in rule 2(1)(d)(iv), stands omitted from the substituted rule. As such, with effect from April 18, 2006, in any case where the taxable service is provided or is to be provided by either a person who has established a business in a country other than India or has a fixed establishment from which the service is provided or is to be provided in a country other than India or has his permanent place or usual place of residence in a country other than India, the service recipient in India would be treated as if it has itself provided the service in India and, accordingly, it would be liable to pay the service tax and comply with all procedural and other requirements as specified in the Act and the said Rules. The respective clauses in section 66A (1) (a) are disjunctive and, hence, once any of the three alternatives contained therein are satisfied, the service recipient becomes liable to pay service tax on the taxable service involved.

Applying the aforesaid provision, since the service is being provided by foreign branch of an Indian Bank, the condition precedent laid down in section 66A(1)(a) is satisfied and, in the absence of the phrase ‘does not have any office in India’ in rule 2(1)(d)(iv), as recipient of the services, the borrowers would be liable to make payment of the service tax payable on the ‘Banking and Other Financial Services’.

3. The fees paid or to be paid are liable to service tax under ‘Banking and Other Financial Services’ under the Act with effect from September 10, 2004. The liability to pay service tax for the period prior to April 18, 2006 would be that of Indian Bank and on and from April 18, 2006, would be that of the borrowers.

There are times come to our life when we need money for fulfil the desires of ours and our family. These desires can be visiting to a dream holiday vacation. purchasing an electronic appliance for our family, wedding of daughter etc. In the country like India, for the banks and other financial organisations, money can not be the barrier for fulfilling these desires. Indian Banks do provide loans for personal expenses at an affordable rate of interest and flexible terms and conditions.

Personal loans are provided to both salaried and self-employed individuals. Though there are special loans that being provide by the banks to the self employed professionals such as engineers, architects, doctors, chartered accountants, company secretaries and ICWAI graduates. Under the category of personal loan one can get a minimum amount of Rs. 20,000 and the loan amount can be extended up to Rs. 20 lakhs. The amount totally depends on some factors such as the financial standing of the borrower, repayment capacity of the borrower, past record of loan repayment and so on. The repayment option varies from bank to bank. Usually banks provide the repayment tenure period of one year to five years.

The personal loans are absolutely hassle-free loans. For getting the advantage of this kind of loan one does not have to keep anything as security or guarantor to the loan provider. The borrower will get the option to pay the loan amount by with easy Equated Monthly Instalments.

There are various Indian and foreign banks there which provides personal loans against a very moderate rate of interest and flexible terms and conditions. Among all the banks some of the best personal loan providers are State Bank of India – Loan For Personal Expenses, ICICI Bank – Available Loan For Personal Use, HDFC Bank – HDFC Bank Personal Finance, Bank of India – Star Personal Scheme, IDBI Bank – IDBI Personal Expense Finance, Bank of Baroda – Baroda Personal Financial Offer, Standard Chartered – EMI Refund Program Scheme, HSBC Bank – Smooth Personal Loan Repayment, Development Credit Bank – DCB Personal Vantage Plan and United Bank of India – United Personal Schemes. With a very affordable interest rate these banks offer customers highly flexible terms of repayment.

From these banks one can avail specialised best personal loans for under the category of Consumer Durable Loans, Festival Loans, Marriage Loans, Pension Loans and personal Computer Loans.

If we have a close look at the personal loan market in a developing country like India, we will be amazed to know that India has broken her long-standing shackles to emerge as one of the most promising names in the world of economic development, courtesy the loan market. Studies have revealed that the major constituent of the loan borrowers belongs to the middle and low economic classes. These economic classes have made the “right” use of these loans to strengthen their economic prosperity besides fulfilling their basic as well as luxurious needs with the help of these loans. It has also been seen that most of the leading financial institutions in the country are now focusing on customer appealing and budget-friendly loan deals to grab the attention of the masses. These changes have been greatly admired by the masses and this is clearly evident from the fact that a major part of the Indian working class use the personal loans as definitive measures to meet their needs.

According to the borrower, the responsibility of paying service tax is of the service provider which is the foreign branch of the Indian bank and, hence, the Indian bank having a permanent establishment in India, is supposed to pay and not the borrower.

The contention of the service tax authorities is partially correct after coming into effect of section 66A of the Finance Act, 1994 from April 18, 2006.

Until the coming into effect of section 66A, the liability and obligation to pay service tax was that of Indian bank and not that of the borrower. Contrary to the contention of the service tax authorities, even under rule 2(1)(d)(iv) of the said Rules, effective from August 16, 2002 and June 16, 2005 respectively, the borrower cannot be made liable for the payment of service tax.

2. Rule 2(1)(d)(iv) reads as follows :—

‘Person liable for paying the service tax’ means,—

(iv) in relation to any taxable service provided or to be provided by a person, who has established a business or has a fixed establishment from which the service is provided or to be provided, or has his permanent address or usual place of residence, in a country other than India, and such service provider does not have any office in India, the person who receives such service and has his place of business, fixed establishment, permanent address or, as the case may be, usual place of residence, in India.”

From the aforesaid provisions, it would be clear that until April 18, 2006, the requirement under rule 2(1)(d)(iv) was that only in case where the service provider did not have any office in India, the person receiving taxable service was liable for paying service tax involved. In the cited case, the Indian Bank having its registered and head office in India, and a branch in a foreign country cannot be said to be a service provider who did not have an office in India.

After coming into effect of section 66A, rule 2(1)(d)(iv), substituted with effect from April 18, 2006 by the Service Tax (Second Amendment) Rules, 2006, reads as follows :—

“‘Person liable for paying the service tax’ means -

(iv) in relation to any taxable service provided or to be provided by any person from a country other than India and received by any person in India under section 66A of the Act, the recipient of such service;”

As such, until April 17, 2006, the borrower was not a ‘person liable for paying service tax’ within the meaning of the Act and the said Rules, including rule 2(1)(d)(iv) thereof.

It is relevant to note herein that the phrase ‘does not have any office in India’, in rule 2(1)(d)(iv), stands omitted from the substituted rule. As such, with effect from April 18, 2006, in any case where the taxable service is provided or is to be provided by either a person who has established a business in a country other than India or has a fixed establishment from which the service is provided or is to be provided in a country other than India or has his permanent place or usual place of residence in a country other than India, the service recipient in India would be treated as if it has itself provided the service in India and, accordingly, it would be liable to pay the service tax and comply with all procedural and other requirements as specified in the Act and the said Rules. The respective clauses in section 66A (1) (a) are disjunctive and, hence, once any of the three alternatives contained therein are satisfied, the service recipient becomes liable to pay service tax on the taxable service involved.

Applying the aforesaid provision, since the service is being provided by foreign branch of an Indian Bank, the condition precedent laid down in section 66A(1)(a) is satisfied and, in the absence of the phrase ‘does not have any office in India’ in rule 2(1)(d)(iv), as recipient of the services, the borrowers would be liable to make payment of the service tax payable on the ‘Banking and Other Financial Services’.

3. The fees paid or to be paid are liable to service tax under ‘Banking and Other Financial Services’ under the Act with effect from September 10, 2004. The liability to pay service tax for the period prior to April 18, 2006 would be that of Indian Bank and on and from April 18, 2006, would be that of the borrowers.