SALES TAX ON LEASE AND HP TRANSACTIONS IN INDIA
By V Sourirajan and Vinod Kothari
Sales-tax on lease and hire-purchase transactions remains the most gray and the most painful part of leasing business in India. The following is an attempt to ansNBFCsr basic questions on sales-tax as it relates to lease and hire-purchase transactions. The questions are structured - so for best results, read them sequentially.
Ans NBFCs can enter into the following transactions :
Ans Sales Tax is leviable when goods are sold. Thus there must be " Goods and there must be a sale .
" Goods " includes all types of movable property . " Sale " means a transfer of property in goods from one person to another for a consideration.
But Sales Tax is leviable only on a person who is a dealer. A casual transaction by a non-dealer is not subject to Sales Tax. Thus , if an individual salary earner sells off his personal car , there is no Sales Tax attracted.
To summarise , Sales Tax is leviable on sale of goods by a dealer.
Ans In a Finance Lease , NBFCs are the owner of the Goods and the lessee only has the right to use the goods on payment of lease rentals. It is a contract of hiring or bailment . Hence there is no " sale " as defined.
However , there is a transfer of the right to use the goods from us to the lessee . And this has become taxable as a deemed sale. The Sales Tax , also called "Lease Tax ", is leviable on the Transfer of Right to Use the goods from us to the lessee. And the tax is charged as each rental for use of the lease asset becomes due and payable.
It may be noted that Lease Tax is a case of taxing a non-sale -the consumption of utility of goods - though there is no transfer of title. . Whether it is good law or will the Courts strike down this Tax ? We are not sure , but NBFCs are agitating the matter in a Court. NBFCs have a contestable case on two grounds: (a) if the lease is not a mere agreement for use of goods but also incorporates integral services; and (b) if it could be argued that the lease is a plain financing arrangement (which obviously would adversely affect the lessor in other ways). The matter would possibly take some time before it is finally laid at rest by the Supreme Court.
Ans. Yes , Hire Purchase is a deemed sale of the goods at the time it is delivered to the Hirer by us under the Hire Purchase agreement .
This creates an anomalous position for Hire Purchase , as in case of a lease, a dichotomy between general law and Sales-tax treatment. Under Sales Tax law the goods are treated as sold . But under the Sale of Goods Act , the goods are not yet sold to the Hirer since the property in the goods is still with the NBFC.
The goods are sold legally only when after fulfilling all his obligations under the hire purchase agreement the hirer exercises his option to purchase the goods. At that time the sale invoice , if any is raised, will be disregarded in Sales Tax, since it is in pursuance of an embedded option in the contract, and is not independent sale by itself.
Ans. Lease is a sale followed by a transfer of right to use. Supplier S sells to the NBFC and the NBFC gives the goods on lease to Customer C ( Transfer of the right to use the goods ). Hence, there are two sale transactions - the sale proper, and the lease.
In HP, also, there are 2 sales . Supplier S sells to the NBFC and the NBFC simultaneously sells to the Customer C by entering into a hire purchase agreement.
Commercially speaking, the two transactions are not different. There are two contracts in either case, usually bundled in a single delivery from the supplier to the end-user.
Therefore, in a Lease , there will be a Sales Tax on the Sale and a Lease Tax ( if any ) on the transfer of the right to use. In a Hire Purchase there will be 2 Sales Taxes applicable on 2 separate sales. However, sales-tax laws (for historical reasons only) treat lease and hire-purchase substantially differently. Since the choice of the instrument, viz., lease or hire-purchase, may lead to material sales-tax difference, it is important that the sales-tax implications are analysed before choosing the instrument or concluding the transaction.
Ans. If the Lease is inter-state then there is no lease tax. This is because even though the lease transaction is chargeable to tax , the Central Sales Tax Act has not yet been amended to tax such a transaction .
Caution: Though NBFCs would generally contest levy of sales-tax on inter-state leases, the matter is neither free from controversy nor would it be an easy success with the sales-tax department. Therefore, in general, NBFCs should try to collect sales-tax on such transaction by way of a contingency deposit, refundable if NBFCs succeed in their stand.
However , care should be taken that the inter-state movement took place directly as a result of the lease transaction. The LR/RR should be in the NBFC's name and show the Consignee as the Lessee .The recommended procedure for establishing an inter-state sale is as follows and should meticulously be followed:
Ans. If the goods move intra state , then the second sale will be normally exempt as an intra-state sale in the hirer's state. Normally, such sale will be exempt on a single point tax principle: however, this depends on the law of the state.
However , if the goods move inter state , then sales tax will be levied twice , unless Section 6(2)(b) procedure is followed.
Ans. The following is the procedure :
Once this procedure under Section 6(2)(b) is followed tax will be levied only once( that is , on the Suppliers invoice) and the subsequent hire purchase transaction will be exempt.
Please note that only a Hirer who is a registered Dealer in the Goods or a manufacturer who uses the goods as Raw Material or Packing Material or using the hired article as a machinery can issue C Form to NBFCs.
Thus a hirer of a Car for personal use cannot issue a C Form; nor can a service organisation do it since it may not be a registered dealer at all. since he is not a dealer in cars nor does he use the car as a RM/PM / Machinery in his manufacturing activity.
Likewise , for an office air conditioner the hirer cannot issue a C Form since he is not using the same as RM/PM/machinery. nor is he a dealer in Air conditioners.
The procedure in Section 6 (2)(b) is cumbersome and should be followed properly . Otherwise NBFCs will land up having to pay double tax.
Ans. . Yes , NBFCs will have to pay Sales Tax twice since Section 6(2)(b) procedure cannot be followed. This would be disastrous as it will impair the profitability of the transaction.
In Commercial Vehicles business, most truck operators operate on All India permits and Dealers are located in all states . Inter state movement can occur on a large scale and this can lead to double Sales Tax.
Similarly if cars are booked in one state and the demand is in another , again interstate movements may occur leading to double tax.
Ans. NBFCs must localise the Hire Purchase in the state where the dealer is located .
Do the following :
Ans. If the sale is outside India or in the course of import into India or export out of India , India cannot tax such a sale.
Ans. If the sale is within a state then that state has the power to tax it.
Ans. If the sale takes place in the course of Inter state trade , the Central Government can tax such a sale.
However , there is no administering machinery of the Central Government to administer inter state sale tax. The same is delegated to the state governments .
Ans. That state where the inter state movement commences has the jurisdiction and the rate chargeable is also that applicable in that state for CST transactions
Ans. Since under the sharing arrangement all the CST collections are retained by the state concerned, states have been allowed to reduce the CST rates and also give exemptions. So while as a general rule CST is 10% or such higher rate if the State charges a higher rate of tax on the local sale of the subject goods; or 4% with C Form, this could vary from state to state. But the State Government cannot increase the Central Sales Tax from 10/4 % in any case.
Ans. Yes , unless NBFCs shift jurisdiction .
Ans. As explained , the jurisdiction in Inter state transaction is in the state where movement of goods commences. But NBFCs can shift the jurisdiction from all states to say Maharashtra .
This can be done by endorsement of the LR during transit. If endorsement is done the jurisdiction shifts to the place where endorsement was made. Thus NBFCs could instruct the Supplier to send goods physically to Customer and hand over the LR in our name at our Bombay address. NBFCs will then endorse the Consignee copy of the LR in favour of the Customer and forward it to the Customer. The Customer will claim the goods from the transporter by producing this endorsed LR.
Ans. VAT is a tax on value added . In Maharashtra Vat is payable on resales, i.e. on HP and Credit Sales transactions of goods acquired from within Maharashtra. It is payable on the agreement value less cost of purchase. The tax is payable in installments as and when each EMI becomes due. Concessional Vat cannot be charged on the customer . But non concessional vat can be recovered from the customer.
Ans. TOT is applicable in AP and Karnataka . In AP it is recoverable from the Customer while in Karnataka it is not. TOT is not there is any other state. TOT is payable at a percentage of the Turnover.