No service tax applicable on reimbursements, rules Indian Supreme Court

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement


No service tax applicable on reimbursements, rules Indian Supreme Court

Sponsored by

logo.png
The new instructions concern the imports of goods and services

The Apex Court in a recent judgment (Civil Appeal number 2013 of 2014) held that no service tax should apply on expenditures recovered as reimbursements before May 14 2015.

The Apex Court affirmed the Delhi High Court ruling which opined that the scope of Rule 5 went beyond the purview of Section 67 of the Service Tax Law and hence impermissible.

The taxpayers were rendering services in the following four categories:

  • Consulting engineering;

  • Share transfer agency;

  • Custom house agent covered by the head 'clearing and forwarding agent'; and

  • Site formation and clearance, excavation and earth moving, and demolition.

While rendering the aforesaid services, the taxpayers also received reimbursements for certain activities undertaken by them which in their view should not have been included in the 'gross amount charged' for the levying of service tax. As per Rule 5, the value of these reimbursable activities should also have been included as part of the services provided.

In terms of the service tax legislation, the rules have been formulated for carrying out the provisions of the law which provides for levying, quantification and collection of service tax.

Section 67 categorically mentions that service tax should apply only on the gross amount charged for providing such a taxable service. Therefore, any amount which does not apply in relation to providing the taxable service cannot be brought within the tax net. Once this interpretation was given, it was clear that Rule 5 went far beyond the mandate of Section 67. It is established law that rules cannot go beyond the statute. The aforesaid view is further strengthened by the manner in which the legislature itself was enacted. On realising that Section 67 did not include reimbursable expenses, the legislature suitably amended the law to include reimbursable expenditure or cost incurred by the service provider in the course of providing or agreeing to provide a taxable service. Thus, only with effect from May 14 2015, by virtue of provisions of Section 67 itself, could such reimbursable expenditure or costs form part of the valuation of the taxable services for the purposes of charging service tax.

bagri.jpg

Niraj Bagri (niraj.bagri@dhruvaadvisors.com)

Dhruva Advisors

Tel: +91 22 6108 1000

Website: www.dhruvaadvisors.com

more across site & shared bottom lb ros

More from across our site

The ambitious big four challenger firm has also appointed ex-RSM partner Brad Ashton to build out its customs and global trade practice
The big four firm allegedly reviewed backdated documents and signed off on accounts that removed hundreds of millions of dollars of Abramovich’s assets
New Tier 1 entrants and an expanding cohort of established players indicate that law firms are becoming increasingly credible challengers in Europe's TP market
Awards
Leading firms and individuals gathered in Dubai to celebrate standout legal, dealmaking and tax work across the region
Tax authorities want more revenue, have better tools to find it and are increasingly willing to fight for it
Audifina, the sixth-largest firm of its kind in Lithuania, will bring a 90-strong team with offices in Vilnius and Kaunas to RSM’s international platform
As global capability centres use AI to deliver services, MNEs face a fresh wave of PE and TP exposure that their existing playbooks weren't built for
The deal for Comtax hands Ryan immediate scale in Brazil, with a near-70-strong team serving clients from São Paulo
The arrivals of Julio Castro and Adam Blakemore mean the firm has added six tax partners to its global practice since the start of 2025
Tax authorities have gained unprecedented transparency through CbCR, but a new study suggests they may not be looking in the right places
Gift this article