Temporary place of supply of service cannot be location of supplier of service or recipient of service
The aforesaid definitions clarify that the location has to be either registered place or a fixed establishment. A temporary place cannot be ‘location of supplier or recipient of service’.
For example, if a taxable person registered in Mumbai gives property in rent at Chennai, location of supplier of service will be Mumbai. Location of service receiver will be Chennai if he has registration or fixed establishment in Chennai. Otherwise, his location will be where he is registered.
Case Law – In CCE v. DFDS A/S (2012) 36 STT 401 = 24 6 (ECJ), assessee in Denmark established a subsidiary in UK. The UK subsidiary marketed tour packages of behalf of assessee. The subsidiary in UK had sufficient human and technical resources. It was held that assessee has ‘fixed establishment’ in UK and that would be place of provision of service.
In GunderBerkholz, Hamburg v. Finanzamt (Tax Office) Hamburg-Mitte-Alstadt (2012) 36 STT 421 = 22180 (ECJ), assessee had establishment in Germany. It installed and operated gaming machines on board ships to entertain passengers. The work was done intermittently. There was no permanent staff employed on ship. It was held that assessee has fixed establishment in Germany. Ship is not a fixed establishment.