Login | Register Now | Contact Us   
 

CGST Act IGST Act UTGST Act GST (Compensation to the States) Act Addendum to the GST Rate Schedule - 03.06.2017 101st Constitution Amendment Act, 2016 Addendum to the GST Rate Schedule - 18.05.2017 GST Compensation Cess Rates Decided in the GST Council Meeting held on 18.05.2017 Chapter Wise Rate wise GST Schedule - 03.06.2017 Chapter wise GST Rate Schedule for Goods Decided in the GST Council Meeting held on 18.05.2017 Revised Threshold for Composition Scheme - 11.06.2017 IGST Exemptions Approved by the GST Council - 11.06.2017 GST Rates Approved by the GST Council - 11.06.2017 Service Tax Exemptions in GST IGST Exemption, Concession List - 03.06.2017 Composition - Rules Valuation Rules ITC - Rules Invoice, Debit & Credit Notes - Rules Payment - Rules Refund - Rules Registration - Rules Return- Rules Transition Rules Proposed CTD Document Accounts and Record Rules GST rate Schedule for Services Decisions Taken by the GST Council in the 16th Meeting - 11.06.2017 List of Services under Reverse Charge Classification Scheme for Services Under GST
Transfer of goods by way of Hiring, Leasing
Transfer of goods by way of Hiring, Leasing

Declared Services Page

INTRODUCED: With Effect From 1st July 2012
 
Contents
Definition
Scope
Clarification
Relevant Notifications / Circulars
 
 
DEFINITION:
According to Section 66E (f) transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods would be a declared service.
 
SCOPE:

Under Article 366(29A) of the Constitution of India;

'Transfer of right to use goods' is deemed to be a sale, and hence not Taxable;

and

Transfer of goods by way of hiring, leasing, licensing or any such manner WITHOUT TRANSFER OF RIGHT TO USE SUCH GOODS is a declared service under clause (f) of Section 66E and therefore taxable.

 
CLARIFICATION:
TOP

What is the meaning and scope of the phrase ‘transfer of right to use such goods’?

Transfer of right to use goods is a well recognized constitutional and legal concept. Every transfer of goods on lease, license or hiring basis does not result in transfer of right to use goods. Transfer of right of goods involves transfer of possession and effective control over such goods in terms of the judgment of the Supreme Court in the case of State of Andhra Pradesh v. Rashtriya lspat Nigam Ltd [Judgment dated 6/2/2002 in Civil Appeal no. 31 of 1991]. Transfer of custody along with permission to use or enjoy such goods, per se, does not lead to transfer of possession and effective control.

The test laid down by the Supreme Court in the case of Bharat Sanchar Nigam Limited v. Union of India [STO 2006 SC 19] to determine whether a transaction involves transfer of right to use goods, which has been followed by the Supreme Court and various High Courts, is as follows:

► There must be goods available for delivery;

There must be a consensus ad idem as to the identity of the goods;

The transferee should have legal right to use the goods – consequently all legal consequences of such use including any permissions or licenses required therefore should be available to the transferee;

For the period during which the transferee has such legal right, it has to be 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 license to use the goods;

Having transferred, the owner cannot again transfer the same right to others.

Whether a transaction amounts to transfer of right or not cannot be determined with reference to a particular word or clause in the agreement. The agreement has to be read as a whole, to determine the nature of the transaction.

Whether the transactions listed in column 1 of the table below involve transfer of right to use goods?

Sr. No. Nature of transaction Whether transaction involves transfer of right to use
1. A car is given on hire by a person to a company along with a driver on payment of charges on per month/mileage basis Right to use is not transferred as the car owner retains the permissions and licenses relating to the cab. Therefore possession and effective control remains with the owner (Delhi High Court Judgment in the case of International Travel House in Sales Tax Appeal no 10/2009 refers). The service is, therefore covered in the declared list entry.
2. Supply of equipment like excavators, wheel loaders, dump trucks, cranes, etc for use in a particular project where the person to whom such equipment is supplied is subject to such terms and conditions in the contract relating to the manner of use of such equipment, return of such equipment after a specified time, maintenance and upkeep of such equipment. The receiver is not free to use such equipment in any manner as he likes and conditions have been imposed on use and control of such equipment. The transaction will not involve transfer of right to use such equipment as in terms of the agreement the possession and effective control over such equipment has not been transferred even though the custody may have been transferred along with permission to use such equipment.
3. Hiring of bank lockers The transaction does not involve the right to use goods as possession of the lockers is not transferred to the hirer even though the contents of the locker would be in the possession of the hirer.(refer to Andhra Pradesh High Court Judgment in the case of State Bank of India v. State of Andhra Pradesh).
4. Hiring out of vehicles where it is the responsibility of the owner to abide by all the laws relating to motor vehicles. No transfer of right to use goods as effective control and possession is not transferred (Allahabad High Court judgement in Ahuja Goods Agency v. State of UP [(1997)106STC540] refers)
5. Hiring of audio visual equipment where risk is of the owner No transfer of right to use goods as effective control and possession is not transferred
 
RELEVANT SERVICE TAX CIRCULARS/INSTRUCTIONS/TRADE NOTICES:
TOP

Taxation of Services - An Education Guide dated 20.06.2012

 

 
 

www.centralexciseonline.com

 


www.taxolegal.com


Page copy protected against web site content infringement by Copyscape


www.customsindiaonline.com
Home | Mission | Contact Us | Acknowledgements © 2009 Copyrights, All Rights Reserved. 
Disclaimer Though all efforts have been made to reproduce the order and other contents correctly, the access and circulation is subject to the condition that EASY SERVICETAXONLINE DOT COM PRIVATE LIMITED is not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions. Mr Certify site is constantly updated and any or all of the contents are liable to be modified, altered, deleted or replaced. EASY SERVICETAXONLINE DOT COM PRIVATE LIMITED is not responsible/liable for any loss or damage caused to anyone whether directly or indirectly  due to any modification , alteration, addition, deletion or replacement of any of the contents.

Copyright: Reproduction of news articles, photos, or any other content in whole or in part in any form or medium without express written permission of  EASY SERVICETAXONLINE DOT COM PRIVATE LIMITED is prohibited.Do not copy contents of this site. All pages are protected by COPYSCAPE. Plagiarism will be detected by COPYSCAPE.