Sex and Service Tax
A Netizen writes in -
"KHAJURAHO is a town in the state of Madhya Pradesh and is famous for its temples containing some sexual or erotic art outside the temple or near the deities. There are many interpretations of the erotic carvings. It is said that these suggest tantric sexual practices. Anyway, the fact of the matter is the hoi polloi perceive it as obscene bordering to the extent of pornography.
The law relating to pornography or 'obscenity' is laid down in Sec.292 of the Indian Penal Code. As per the Act, accessing pornography in private is not illegal. Moving forward (and backward) in India, watching or possessing pornographic materials is legal but distribution of such materials is banned. Likewise, the publication or production of X-rated materials is illegal.
In this scenario, with the massive penetration of Internet in our country thanks to mobile telephony and the various uses to which it is put to by the masses, mushrooming of pornographic sites has become the order of the day.
Coupled with the entry of an Indian born adult star into the Big Boss house last year and the immense popularity that she earned by the second edition of the 'body' film, she has gone gung ho and has given feast for the masses eyes by her own website which allows the bleary & dreary eyed to watch her and her performances for a month/a quarter/a year on payment of Indian Rupees (Rs.856.95/Rs.2144.95/Rs.3433.95 respectively) through net banking and all available modes. There are lot many other websites which nowadays cater to the thirsty Indians and which are doing roaring or for that matter screaming business. I had also stumbled (on purpose) to a similar site and found that they were charging Rs.185/- for fifteen minutes of unbridled pleasure! All this I inform through your column because I think that this act falls within the scope of ‘accessing pornography in private' and which is not illegal.
On the question of whether this highly arousing service being provided is chargeable to Service Tax under the category of "on-line information and database access or retrieval", the defence that the ‘adult star' may put forward would be that these services are being provided by her through herself and her husband to allow Indians to liberate themselves and she, in fact, is doing a great ‘service' to the nation obsessed with the three letter word.
She is actually bang on target. A visit to the notification 25/2012-ST would reveal that the Government also has the same ideology inasmuch such ‘services' are exempted from Service Tax. Surprised at the missionary position?
Take a look at the following entry -
"34. Services received from a provider of service located in a non taxable territory by -
(a) Government, a local authority, a governmental authority or an individual in relation to any purpose other than commerce, industry or any other business or profession;"
Obviously, the services are being provided from outside India i.e a ‘non-taxable territory' as these movies are shot in and around homes in California and the "recipient" of the service in India uses it for the purpose other than business or commerce, and obviously so - it is self gratification.
The Indian youth and the old should be thankful to the Central Government for allowing them to ogle and satisfy their voyeuristic tendencies without paying any Service Tax - direct or through the reverse charge mechanism!"