Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Service Tax Wing
Circular No 198/08/2016-Service Tax
New Delhi, the 17th August, 2016
Subject: Service tax liability in case of hiring of goods without the transfer
of the right to use goods.
In terms of sub-clause (d) of clause (29 A) of Article 366 of the Constitution
of India, the transfer of the right to use any goods for any purpose (whether or
not for a specified period) for cash, deferred payment or other valuable
consideration is deemed to be a sale of those goods by the person making the
transfer, delivery or supply and a purchase of those goods by the person to whom
such transfer, delivery or supply is made. It follows that such transactions
will be liable for Sales Tax/Value Added Tax. In terms of section 66E(f) of the
Finance Act, 1994, transfer of goods by way of hiring, leasing, licensing or in
any such manner without transfer of right to use such goods is a "declared
service" and hence liable to service tax. In this regard some representations
have been received.
2. The matter has been examined. I am directed to draw your attention to the
fact that in any given case involving hiring, leasing or licensing of goods, it
is essential to determine whether, in terms of the contract, there is a transfer
of the right to use the goods. Further, the Supreme Court in the case of Bharat
Sanchar Nigam Limited vs Union of India, reported in 2006 (2) STR 161 SC, had
laid down the following criteria to determine whether a transaction involves
transfer of the right to use goods, namely,-
a. There must be goods available for delivery;
b. There must be a consensus ad idem as to the identity of the goods;
c. The transferee should have a legal right to use the goods - consequently all
legal consequences of such use, including any permissions or licenses required
therefor should be available to the transferee;
d. For the period during which the transferee has such legal right, it has to be
to the exclusion to the transferor this is the necessary concomitant of the
plain language of the statute - viz. a "transfer of the right" to use and not
merely a licence to use the goods;
e. Having transferred the right to use the goods during the period for which it
is to be transferred, the owner cannot again transfer the same right to others.
3.1 This criteria must invariably be followed and applied to cases involving
hiring, leasing or licensing of goods. The terms of the contract must be studied
carefully vis-a-vis the criteria laid down by the Supreme Court in order to
determine whether service tax liability will arise in a given case. It is not
possible to either give an exhaustive list of illustrations or judgements on
this issue. Cases decided under the Sales Tax/VAT legislations have to be
considered against the background of those particular legislative provisions and
terms of contract in that case.
3.2 The following case law may also be referred to. These should not be applied
mechanically but their applicability to the facts of a given case, the terms of
the contract in the given case and the criteria laid down by the Supreme Court
should be examined carefully.
3.2.1 Commissioner VAT vs International Travel House Ltd - Delhi High Court
judgement dated 8-9-2009 in ST Appeal 10/2009
3.2.2 Rashtriya Ispat Nigam Limited vs Commercial Tax Officer reported in 1990
(77) STC 182 and State of Andhra Pradesh vs Rashtriya Ispat Nigam Limited
reported in 2002 (126) STC 114
3.2.3 State Bank of India vs State of Andhra Pradesh reported in 1988 (70) STC
215 A.P
3.2.4 Ahuja Goods Agency vs State of Uttar Pradesh reported in 1997 (106) STC
540
3.2.5 Lakshmi AV Inc vs Assistant Commercial Tax Officer reported in 2001 (124)
STC 426 Karnataka
3.2.6 G. S Lamba and Sons vs State of Andhra Pradesh reported in = 2015 (324)
ELT 316 A.P
4.1 There will also be cases involving either a financial lease or an operating
lease. The former generally involves a transfer of the asset and also the risks
and rewards incident to the ownership of that asset. This transfer of the risks
and rewards is also recognised in accounting standards. It is generally for a
long term period which covers the major portion of the life of the asset and at
the end of the lease period, usually the lessee has an option to purchase the
asset. The lessee bears the cost of repairs and maintenance and risk of
obsolescence also rests with him. In contrast, an operating lease does not
involve the transfer of the risks and rewards associated with that asset to the
lessee. It is for a short term period and at the end of the lease period the
lessee does not have an option to purchase the asset. The cost of repairs,
maintenance and obsolescence rests with the lessor.
4.2 Similarly in the aircraft industry there are "dry leases" and "wet leases".
Generally speaking, "wet leases" may involve short term provision of an aircraft
along with crew, maintenance and insurance while the lessee bears other
operating expenses. In contrast, a "dry lease" is for a relatively longer term
and involves the provision of an aircraft only without crew.
4.3 The above two situations have been elaborated only to explain and emphasize
the diverse nature of such transactions. There can be variations and in some
cases, a combination.
5. In all these cases, no a priori generalisations or assumptions about service
tax liability should be made and the terms of the contract should be examined
carefully, against the backdrop of the criteria laid down by the Supreme Court
in the Bharat Sanchar Nigam Limited case as well as other judicial
pronouncements.
Yours faithfully
(Sreeparvathy S L)
Officer on Special Duty
Service Tax Wing
F.No.137/54/2016-Service Tax-Part-II
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