Point of Taxation Rules while Dealing with Associated Enterprises

By | February 7, 2015
As per Section 65B(13) of Finance Act 1994 as inserted w.e.f. 1-7-2012, Associated Enterprise has the meaning assigned to it in Section 92A of Income Tax Act, 1961 Under section 92A(1) an enterprise would be regarded as ‘associated enterprise’ of another enterprise if—

it participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise, or
the persons participating, directly or indirectly, or through one or more intermediaries, in its management or control or capital also participate in the management or control or capital of other enterprise.
Deemed associated enterprises [Section 92A(2)]

Two enterprises shall be deemed to be associated enterprises if at any time during the previous year

one enterprise holds, directly or indirectly, shares carrying at least 26% of the voting power in the other enterprise.
 any person or enterprise holds, directly or indirectly, shares carrying at least 26% of the voting power in both these enterprises.
a loan advanced by one enterprise to the other enterprise constitutes at least 51% of the book value of the total assets of the other enterprise.
one enterprise guarantees at least 10%of the total borrowings of the other enterprise.
more than half of the board of directors or members of the governing board, or one or more of the executive directors or members of the governing board, of one enterprise are appointed by the other enterprise.
more than half of the board of directors or members of the governing board, or one or more of the executive directors or members of the governing board, of both the enterprises are appointed by the same person(s).
the manufacture or processing of goods or articles or business carried out by one enterprise is wholly dependent upon the use of know-how, patents, copyrights, trade-marks, licenses, franchises, or any other business or commercial rights of similar nature, or any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process, of which the other enterprise is the owner or has exclusive rights.
one enterprise or persons specified by it, supply and influence the prices and other conditions relating to 90% or more of the raw materials and consumables required for the manufacture or processing of goods or articles carried out by the other enterprise.
the goods or articles manufactured or processed by one enterprise, are sold to the other enterprise or to persons specified by the other enterprise, and the prices and other conditions relating thereto are influenced by such other enterprise.
where one enterprise is controlled by an individual, the other enterprise is also controlled by such individual or his relative or jointly by such individual and relative of such individual.
where one enterprise is controlled by a HUF, the other enterprise is controlled by a member of such HUF or by a relative of a member of such HUF, or jointly by such member and his relative.
where one enterprise is a firm, association of persons or body of individuals, the other enterprise holds at least 10% interest in such firm, association of persons or body of individuals.
there exists between the two enterprises, any relationship of mutual interests, as may be prescribed.
Departmental clarification on Associated Enterprises — CBE&C TRU letter F. No.334/1/208-TRU dated 29-02-2008 clarifies as follows :

TRANSACTIONS BETWEEN ASSOCIATED ENTERPRISES:

6.1 Service tax is levied at the rate of 12% of the value of taxable services(section 66). Section 67 pertaining to valuation of taxable service for charging service tax states that value shall be the gross amount charged for the service provided or to be provided and includes book adjustment. As per rule 6 of the Service Tax Rules, 1994, service tax is required to be paid only after receipt of the payment.

6.2 It has been brought to the notice that the provision requiring payment of service tax after receipt of payment are used for tax avoidance especially when the transaction is between associated enterprises. There have been instances where in service tax has not been paid on the ground of non-receipt of payment even though the transaction has been recognized as revenue/expenditure in the statement of profit and loss account for the purpose of determining corporate tax liability.

6.3 As an anti-avoidance measure, it is proposed to clarify that service tax is leviable on taxable services provided by the person liable to pay service tax even if the amount is not actually received, but the amount is credited or debited in the books of account of the service provider. In other words, service tax is required to be paid after receipt of payment or crediting/debiting of the amount in the books of accounts, whichever is earlier. However, this provision is restricted to transaction between associated enterprises. This provision shall also apply to service tax payable under reverse charge method (Section 66A) as taxable services received from associated enterprises. For this purpose section 67 and rule 6(1) are being amended.

6.4 The term ‘associated enterprise’ has the same meaning as assigned to it in section 92A of the Income Tax Act, 1961. It is a relative concept i.e. an enterprise is an associated enterprise when it is viewed in relation to other enterprises. This concept is used in the Income Tax Act for applying transfer pricing provisions. An enterprise which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise is considered as associated enterprise. It also covers an enterprise in respect of which one or more persons who participate, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise.

6.5 Section 92A(2) of the Income Tax Act specifies various situations under which two enterprises shall be deemed to be associated enterprises. Enterprise means a person who is engaged in the provision of any services of any kind. For details, relevant provisions of Income Tax Act may be referred to.

As per Explanation (c) to section 67 of Finance Act, 1994 (as amended w.e.f. 10-05- 2008),
“Gross amount charged” includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment and any amount credited or debited, as the case may be , to any account, whether called ‘suspense account’ or by any other name, in the books of account of a person liable to pay service tax, where the transaction of taxable service is with any associated enterprise.

As per second proviso of Rule 7 of Point of Taxation Rules 2011 as amended w.e.f. 1.4.2012, in case of “Associated Enterprises”, where the person providing the service is outside India,the point of taxation shall be the date of credit in the books of account of the person receiving the service or date of making the payment, wichever is earlier

As per first proviso of Rule 7 of Point of Taxation Rules 2011 as amended w.e.f. 1.4.2012, if the payment for such service is not made within six months from date of invoice, the point of taxation will be determined as if this rule does not exist

Provisions relating to service tax liability will apply, if the amount is considered as expenditure in accounts, even if amount is not credited to account of associate enterprise, but credited to suspense account or any other account and even if payment is not received

Relevant provisions of Cenvat Credit Rules, 2004

As per Rule 4(7) of CCR, credit of Cenvat Credit is allowed only after payment is made to service provider. However in case of Associate Enterprise, service tax is payable when entry has been made in books of account. So for availing of CCR, it has been clarified that as per deeming fiction in section 67(4)(c) of Finance Act 1994, book adjustment is deemed payment. Further rule 4(7) does not indicate form of payment. Thus debit in books of account can also be payment made.

Hence is such case Cenvat credit is allowable(CBE&C circular 122/03/2010-ST dated 30-4-2010)

Departmental clarification as per TRU letter Fno. 341/34/2011-TRU dated 31.3.2011 clarifies as below :

In case the Associate Enterprise is situated in India, no separate provision has been made,  therefore normal rule of Point of taxation will apply

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