Underwriter's services were brought under the Service Tax net by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998 vide Notification No. 53/98, dated 7-10-1998. The service shall be taxed, if provided by an underwriter to clients.
Rate of Service Tax: The rate
of service tax is specified in section 66 of the Act. The Finance (No. 2) Act,
2004 has substituted the charging section 66, and the rate of service tax is
enhanced from 8% to 10% ad valorem. The increase in tax rate has come into
force from the date of enactment of the Finance (No. 2) Act, 2004 i.e. 10-9-2004.
Further, the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004 has also
levied an education cess @ 2 % of the service tax. The cess paid on inputs
services shall be available as credit for payment of cess on output services.
For further discussion in this regard, refer to -'Payment of Service
Tax'.
Underwriter's services covered under the service tax are the services provided by the underwriter to a client in relation to underwriting. As per para 6.3.8.1 of SEBI (Disclosure and Investor Protection) Guidelines, 2000, if a company does not receive the minimum subscription of 90% of the issued amount on the date of the closure of the issue, the company shall forthwith refund the entire subscription amount received. Thus, the company engages underwriters to avoid the risk of refunding the money to the public in case the security is offered to the public is not subscribed. Underwriting services ensures to the company that such situation should not arise, as the underwriter agrees to take up the portion of the securities not subscribed by the public. 'Underwriting is in the nature of an insurance against the possibility of inadequate subscription' [Nani Gopal Lahri v State of U.P. (1965) 35 Comp Cas 30 SC].
(1) 'Underwriting'
"underwriting
has the meaning assigned to it in clause (g) of rule 2 of the Securities and
Exchange Board of India (Underwriters) Rules, 1993" [clause (117) of
section 65].
According
to clause (g) of rule 2 of Securities and Exchange Board of India
(Underwriters) Rules, 1993
"underwriting
means an agreement with or without conditions to subscribe to the securities of
a body corporate when the existing shareholders of such body
corporate
or the public do not subscribe to the securities offered to them".
(2) 'Securities'
"Securities
has the meaning assigned to it in clause (h) of section 2 of the Securities
Contracts (Regulation) Act, 1956" [clause (93) of section 65].
As
per clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956
"securities"
includes
(i) shares, scrips, stocks, bonds, debentures, debenture ' stock or other marketable securities of a like nature in or of any incorporated company or other body corporate; derivative; units or any other instruments issued by any collective investment scheme to the investors in such schemes;
(ii) Government securities;
(iia) such other instruments
as may be declared by the Central Government to be securities; and
(iii) rights or interests in securities."
(3) 'Body corporate'
"body
corporate shall have the meaning assigned to it in clause (7) of section 2 of
the Companies Act, 1956 "[clause (14) of section 65].
As
per clause (7) of section 2 of the Companies Act, 1956
"body
corporate" or "corporation" includes a company incorporated
outside India but does not include:
(a) a corporation sole;
(b) a co-operative society registered
under any law relating to co-operative societies, and
(c) any other body corporate
(not being a company as defined in this Act) which the Central Government may,
by notification in the Official Gazette, specify in this behalf'.
The
definition of taxable service provided by an underwriter has been given under
sub-clause (z) of clause (105) of section 65. That is:
any
service provided "to a client, by an underwriter in relation to
underwriting, in any manner."
Service
tax is liable to be paid when underwriter's services are provided by an 'underwriter'.
(1) 'underwriter'
"underwriter
has the meaning assigned to it in clause (f) of rule 2 of the Securities and
`Exchange Board of India (Underwriters) Rules, 1993" [clause (116) of
section 65].
According
to clause (f) of rule 2 of Securities and Exchange Board of India
(Underwriters) Rules, 1993
If
underwriter means a person who engages in the business of underwriting of an
issue of securities of a body corporate".
As per the
aforesaid definition, an underwriter means a person; who is engaged in the
business of underwriting; issue of securities of a body corporate.
(2) Meaning of 'person'
The term
'person' has not been defined in the context of service tax. But, the term
'person' has been defined as "person shall include any company or association
or body of individual, whether incorporated or not" [clause (42) of
section 3 of General Clauses Act, 1897].
Therefore,
even though, in general, person is understood as only natural person (i.e.
human being) but in the context of service tax, it includes both natural and
artificial and juristic person also. Thus, an underwriter can be a partnership
firm, company, corporation, societies, government enterprises, Hindu undivided
family (H.U.F.), etc.
(3) Act as an 'underwriter'
Underwriting
services can be provided by financial institutions, banks, share brokers who
are members of stock exchanges and investment companies/ trusts with adequate
financial capacity, appropriate standing and experience. However, as per rule 3
of the Securities and Exchange Board of India (Underwriters) Rules, 1993 no
person can act as underwriter unless he holds a certificate granted by the SEBI
under the Securities and Exchange Board of India (Underwriters) Regulations,
1993. As per rule 4(b) of the Securities and Exchange Board of India
(Underwriters) Rules, 1993, an underwriter is required to enter into a valid
agreement with the body corporate on whose behalf he is acting as an
underwriter and the said agreement amongst other things may define the
allocation of duties and responsibilities between him and such body corporate.
Underwriter's services are liable to be charged to tax
Underwriter's
services are liable to be charged to service tax when provided to
§
a client,
§
in any manner,
§
in relation to underwriting.
(1) Client
Services
are liable to be charged to tax only when it is provided to a 'client'. The
word 'client' as per the dictionary meaning means "a person who employs a
lawyer or professional adviser; a customer" (reference the Chambers
English Dictionary) or "a person using the services of a professional
person; customer" (reference the Oxford Mini Dictionary).
Therefore,
the 'client' is necessarily an external person who hires or uses the services
of another person for consideration. Service tax will attract only if services
are rendered to a client, not to the other department within the same concern.
In other words, services must be provided to the separate entity or external
person. When services are provided to the charitable institution for which no
fee is charged it is not a client. Therefore, there is no question of service
tax unless services are provided to a client on payment basis. In the context
of this service, the client is a body corporate.
(2) Meaning of 'in any manner'
Services
are subject to tax when provided 'in any manner'. The words 'in any manner'
signify 'directly or indirectly'. Sometimes, it may be possible that service
provider may not alone be able to execute the work and take the help of other
person or concern by employing them on sub-contract basis for the
execution of work.
The value of taxable services for charging tax
The value
of taxable services in relation to underwriter's services provided by an
underwriter to a client shall be the gross amount charged from the clients in relation
to underwriting [section 67]. Therefore, no abatements towards administrative/
office expenses incurred for rendering such services shall be allowed from the
gross amount charged by him.
Explanation
1 has also been added to section 67, which provides that, for the removal of
doubt, in respect of only certain specific services, it is declared that
certain amount shall be the part of value of taxable services and certain
amount shall not be the part of the value of taxable services, but nothing has been
specified in respect of underwriter's services.
The
underwriter gets the commission or brokerage for the services of underwriting
rendered by him and service tax is required to be paid by the underwriter on
such commission or brokerage. The underwriting commission varies, depending
upon the category of underwriter, and also on the amounts devolving on the
public and those devolving on the underwriters. As per regulation 14 of SEBI
(Underwriter) Regulations, 1993, the underwriting agreement shall also provide,
inter alia, the amount of commission or brokerage payable to the underwriter.
However, the maximum underwriting commission applicable is notified by the
Banking Department of the Ministry of Finance, though lower rates of
underwriting commission can also be negotiated between the underwriter and the
client. The commission varies from 0.5% to 2.5%. As per section 76 of the
Companies Act, 1956, the commission paid or agreed to be paid to the
underwriter cannot exceed in case of shares, 5% of the price at which the
shares are issued or the amount or rate authorized by the articles, whichever
is less, and in the case of debentures, 21/2% of the price at which the
debentures are issued or the amount or rate authorized by the articles,
whichever is less.
The Government has granted exemption from the whole of Service Tax in respect of all taxable services, for services provided to United Nations or an International Organisation. Similarly, the exemption, subject to certain conditions, has also been granted for taxable service provided to a developer or units of Special Economic Zone (SEZ). The Government, w.e.f. 20 November, 2003 has restored the exemption, as an interim measure, from the whole of service tax when payment is received in convertible foreign exchange for the taxable services rendered in India provided it was not repatriated from or sent outside India, such exemption was earlier withdrawn w.e.f. 1-3-2003. The reader may note that. detailed discussion about aforesaid exemptions along with relevant notifications have been given in the 'Exemption from whole of Service Tax - Some Cases'.
N.B. The
readers may note that provisions, procedures and other related discussion
related to registration, payments of service tax, filing of return, interest
and penalty, assessment procedure, appeal, refund of tax, etc., which are same,
as applicable in respect of other taxable services.
[CBEC
Circular F. No. B-11/3/98-TRU, dated 7-10-1998]
As per section 65(53) and section 65(54) of the Finance Act, 1994, "underwriter" has the meaning assigned to it in clause (f) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993 and "underwriting" has the meaning assigned to it in clause (g) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993. According to the Securities and Exchange Board of India (Underwriters) Rules, 1993, "underwriter" means a person who engages in the business of underwriting of an issue of securities of a body corporate and "underwriting" means an agreement with or without conditions to subscribe to the securities of a body corporate when the existing shareholders of such body corporate or the public do not subscribe to the securities offered to them. The "taxable service" means the service provided to a client by an underwriter in relation to underwriting.
Underwriting
services can be provided by financial institutions, banks, share brokers who
are members of stock exchanges and investment/ companies/ trusts with adequate
financial capacity, appropriate standing and experience. However, as per rule 3
of the Securities and Exchange Board of India (Underwriters) Rules, 1993 no
person can act as underwriter unless he holds a certificate granted by the SEBI
under the Securities and Exchange Board of India (Underwriters) Regulations,
1993. As per rule 4(b) of the Securities and Exchange Board of India
(Underwriters) Rules, 1993, an underwriter is required to enter into a valid
agreement with the body corporate on whose behalf he is acting as an
underwriter and the said agreement amongst other things may define the
allocation of duties and responsibilities between him and such body corporate.
As per regulation 14 of the SEBI (Underwriters) Regulations, 1993 shall also
provide for, inter alia, the amount of commission or brokerage payable to the
underwriter. Service tax is required to be paid by the underwriter at the rate
of 5% on such commission or brokerage paid to him for the services of underwriting
rendered by him. The underwriting commission varies, depending upon the
category of underwriter, whether a financial institution or otherwise and also
on the amounts devolving on the public and those devolving on the underwriters.
However the maximum underwriting commission applicable is notified by the
Banking Department of the Ministry of Finance, though lower rates of
underwriting commission can also be negotiated between the underwriter and the
client. The commission varies from 0.5% to 2.51%.