VOL. 19 NO. 6 / DECEMBER 2015

C.V.O. CA’S NEWS & VIEWS

AN OVERVIEW OF WORKS CONTRACT UNDER SERVICE TAX 1. What are Composite Contracts? 2. Definition of Works contract. 3. Valuation of Works contract. 4. Reverse Charge Mechanism. 5. Place of Provision. 6. Point of Taxation. 7. Mega Exemption. 8. Cenvat Credit. This topic has been an ever evolving subject with lots of interpretations and various judgements. Works Contract has become complex due to lot of litigation over the last decade. In this article an attempt is made to provide insight to the concept of Works contract and its intricacies under Service Tax. Composite Contract A composite Contract means a Contract which involves transactions involving anelement of provision of service and an element of transfer of title in goods inwhich various elements are so inextricably linked that they essentially form one composite transaction. Composite Contract is one which has constituent elements but the customer is interested in the final outcome of the Contract. In general Composite Contracts involve both the supply of materials and rendering of services (in reasonably dominant proportions) are known as Works contracts There are 3 theories which constitute a Works Contract which are as follows:Accretion Dictionary Meaning: “Growth or increase by the gradual accumulation of additional layers or matter.” Consider the case of a building Contractor who constructs a building on the land of the client using his owned bricks, sand cement, etc. Till the stage he applies the cement on the land and lays a brick on it, the cement and brick belongs to the Contractor. But once the cement paste and the brick are applied on the land, these ingredients fasten themselves to the land. It is then not possible or viable to remove the cement or brick from the land (without fundamental

Contributed by : Mayank Gosar a student member of the association he can be reached at [email protected]

damage). Since the landbelongs to the Contractee, the ownership in the cement and brick gets transferred to the Contractee by inference and not by way of sale. This process of the Contractor’s materials getting embedded in the client’s immoveable property is referred to as the transfer of ownership in goods through the process of accretion. Accession Dictionary Meaning: A new item added to an existing collection of books, paintings, or artefacts Consider another example of a garage undertaking to paint the car of its client. Similar to the earlier example, till the stage the garage applies the paint on the car, the paint belong to the garage. But once the paint is applied on the car, the liquid paint gets attached on the metal of the car. It is then not possible to remove the paint without fundamental damage. Since the car belongs to the client, the ownership in the paint also gets transferred to the client by inference. This process of the Contractor’s materials getting embedded in the client’smoveable property is referred to as the transfer of ownership ingoods through the process of accession. Blending: Dictionary Meaning: Mix (a substance) with another substance so that they combine together. In a case where multiple moveable products owned by the Contractor are ‘blended’ together to create a new moveable product. Consider the case of a printer who uses paper and ink to print cheque books for its client bank. In this case, the transaction cannot constitute a sale because cheque books are not marketable and therefore are not goods. However, the properties in the paper and the ink have passedon to the bank the moment the printer blended these two moveable products. Thus, there is a transfer of the ownership in goods through the process of blending. In order to understand implication under service tax, it is important to understand the definition provided

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VOL. 19 NO. 6 / DECEMBER 2015 under the Finance Act, 1994. The Definition of WorksContract is as follows:Clause (54) of Section 65B of the Finance Act, 1994 defines Works contract as a 1.

Contract wherein transfer of property in goods involvedin the execution of such Contract is leviable to tax as sale of goods

2.

and such Contract is for the purpose of carrying out a. construction, b. erection, commissioning, installation, c. completion, fitting out, d. repair, maintenance, renovation, e. alteration or f. Any activity for carrying out any other similar activity or a part thereof

3.

In relation to any movable or immovable property.

The words “other similar activity or a part thereof in relation to such property.” are prone to litigation as numerous interpretations are possible varying from case to case. As per section 66E (H) service portion in execution of Works contract is declared as a service. It is now a settled proposition that, splitting of “WorksContract“into a sale contract and service contract is constitutionally permissible so as to levy VAT or sales tax on sale portion whereas service tax on service portion. The Honorable Supreme Court in the case of Bharat Sanchar Nigam Limited vs Union of India [2006(2) STR161 (SC)]. The relevant paras 42 and 43 of the said judgment are reproduced below – “ Of all the different kinds of composite transactions the drafters of the 46th Amendment chose three specific situations, a Works contract, a hire purchase Contract and a catering Contract to bring within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time. Apart from these two cases where splitting of the service and supply has been constitutionally permitted in Clauses (b)and (g) of Clause 29A of Article 366, there is no other service which has been permitted to be so split.

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C.V.O. CA’S NEWS & VIEWS For example, the clauses of Article 366(29A) do not cover hospital services. Therefore, if during the treatmentof a patient in a hospital, he or she is given a pill, can the sales tax authorities tax the transaction as a sale? Doctors, lawyers and otherprofessionals render service in the course of which can it be said thatthere is a sale of goods when a doctor writes out and hands over aprescription or a lawyer drafts a document and delivers it to his/her client? Strictly speaking with the payment of fees, consideration does pass fromthe patient or client to the doctor or lawyer for the documents in bothcases. 43. The reason why these services do not involve a sale for thepurposes of Entry 54 of List II is, as we see it, for reasons ultimatelyattributable to the principles enunciated in Gannon Dunkerley’s case,namely, if there is an instrument of Contract which may be composite inform in any case other than the exceptions in Article 366(29A), unless theWorksContract – A Composite Contract Transaction in truth represents two distinct and separate Contracts and isdiscernible as such, then the State would not have the power to separatethe agreement to sell from the agreement to render service, and imposetax on the sale. The test therefore for composite Contracts other thanthose mentioned in Article 366 (29A) continues to be - did the partieshave in mind or intend separate rights arising out of the sale of goods. Ifthere was no such intention there is no sale even if the Contract could bedisintegrated. The test for deciding whether a Contract falls into onecategory or the other is as to what is the substance of the Contract. Wewill, for the want of a better phrase, call this the dominant nature test.” Clause 29(A) of Article 366 in the Constitution of India 1949 is as follows:(29A) tax on the sale or purchase of goods includes (a) A tax on the transfer, otherwise than in pursuance of a contact, of property in any goods for cash, deferred payment or other valuable consideration. (b) A tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a WorksContract. (c) A tax on the delivery of goods on hire purchase or any system of payment by instalments. (d) Atax on the transfer of the right to use any goods

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C.V.O. CA’S NEWS & VIEWS for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. (e) A tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. (f) A tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. Valuation of WorksContract Service tax is payable on gross amount charged to the customer. But, in case of Works contract as discussed above there are other elements also included hence to determine service portion in composite contract one has to refer to Service tax Valuation Rules. According to new Rule 2A of ServiceTax (Determination of Value) Rules, 2006, subject to the provisions of section 67, the value of service portion in the execution of a Works contract shall be determined in the following manner, namely:(a) Regular Scheme [Rule 2A (i)] (b) Standard Deduction Scheme [Rule 2A (ii)]

Regular Scheme Valuation of Works contract shall be equivalent to gross amount charged for Works contract less the value of property in goods transferred in execution of the said Works contract. Vat or Sales Tax paid shall not be included in the value equivalent to Gross amount charged. Value of WorksContract shall include:(a) Labour charges for execution of the Works (b) Amount paid to a sub-Contractor for labour and services (c) Charges for planning, designing and architect’s fees (d) Charges for obtaining on hire or otherwise, machinery and tools used for the execution of the Works contract; (e) Cost of consumables such as water, electricity, fuel used in the execution of the Works contract; (f) Cost of establishment of the Contractor relatable to supply of labour and services. (g) Other similar expenses relatable to supply of labour and services. (h) Profit earned by the service provider relatable to supply of labour and services. Where vat or sales tax has been paid or payable on the actual value ofproperty in goodstransferred in the execution of the Works contract, then such value shall be taken as the value of property for determining service portion in Works contract

Standard Deduction Scheme Rule Type of 2A(ii) Works contract

Value as a % of total amount charged

Effective rate of service tax w.e.f. 01-10-2014

Effective rate of servicetax w.e.f 01-06.2015

A

Execution of Original Work

40%

4.944%

5.60%

B

Maintenance or repair or reconditioning or restoration or servicing of any goods

70%

8.652%

9.80%

Works contract other than A and B including maintenance , repair, completion and finishing services such as glazing , plastering, floor and wall tiling, installation of electrical fittings of an immovable property

60%#

8.652%

9.80%

C

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VOL. 19 NO. 6 / DECEMBER 2015

C.V.O. CA’S NEWS & VIEWS

By notification No. 11/2014-ST dtd. 11.07.2014 , w.e.f. 01.10.2014, for the purpose of valuation u/r 2A(ii) all Contracts will now be divided into only 2 categories namely (i) Original Works (ii) Non- Original Works By notification No. 22/2016 dtd. 06.11.2015 ,w.e.f from 15.11.2015 Swachh Bharat Cess calculated at the rate of 0.5 percent of the value of taxable services shall be levied. The above rates should be adjusted accordingly. # increased to 70% w.e.f. 01-10-2014. Original Works means all new constructions, all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable ,erection, commissioning or installation of plant, machinery or equipment or structures whether prefabricated or otherwise. Total amount means Gross amount charged for Works contract

XX

+

The FMV of all goods and services supplied in or in relation to the execution of Works contract (whether or not supplied under the same Contract or any other Contract)

XX

-

The amt. charged for such goods or services if any

(XX)

-

The value added tax or sales tax if any levied thereon

(XX)

Total Amount

XX

Whether or not supplied under the same Contract or any other Contract is specifically mentioned in order to prevent misuse of valuation method by artificially bifurcating Works contract into Contract of sale and Works contract service. At times the service receiver shall provide material free of charge to the Contractor. The Contractor must include the fair market value of free issue of materials (used in the Contract) in the composition scheme while calculating servicetax under Works contract. Reverse Charge Mechanism Normally service tax is payable by service provider however, there are exceptions to this rule and in respect of certain specific services service tax is payable under reverse charge by the service recipient. According to Notification No. 30/2012-ST Dated 20.06.2012, in case of service portion in execution of Works contract, the partial reverse charge mechanism would also be applicable. Partial reverse charge is a concept wherein both the service providers as well as service receiver are liable to pay service tax as per defined percentage. Service Provider

Service Receiver

Location

Liability of ServiceTax

Individual, HUF, Proprietary Firm, partnership firm (whether registered or not), LLP, AOP

Business Entity registered as Body Corporate

Both service provider and service receiver must be located in taxable territory

Service Provider50% of ST. Service Receiver50% of ST.

Illustration An individual has provided WorksContractservice to a company. It is in relation to Original Works.

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VOL. 19 NO. 6 / DECEMBER 2015

C.V.O. CA’S NEWS & VIEWS Gross amount charged for Works contract

11250

The FMV of all goods and services supplied in or in relation to the execution of Works contract (whether or not supplied under the same Contract or any other Contract)

5000

The amt. charged for such goods or services if any

(2000)

The value added tax or sales tax if any levied thereon

(1250)

Total Amount

13000

Value as a percentage of total amt. charged for Original Works- 40% of Total value. Therefore total value = 13000* 40% = 5200 Liability of Service Provider – 5200*14%*50% = 364 Rs. Liability of Service Receiver – 5200*14%*50% = 364 Rs. Important Definitions (a) Business Entity According to Clause (17) of Section 65B means any person ordinarily carrying out any activity relating to industry, commerce or any other business. (b) Body Corporate (Under New Companies Act 2013) It includes a company incorporated outside India, but does not include (i) Co-operative society registered under any law relating to co-operative societies and (ii) Any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf. Summary of Reverse Charge Mechanism Service Provider

Service Receiver

Servicetax is payable by Service Provider

ServiceReceiver

Individual, Proprietary Firm,

Body Corporate

50%

50%

Partnership Firm, LLP

Other than body corporate

100%

0%

Government or Local Authority

Any Person

0%

100%

Governmental Authority

Any Person

100%

0%

Any Person

GovernmentalAuthority

100%

0%

Location of Service Receiver is also very important for applicability of Reverse Charge mechanism Service Provider other than a ‘body corpo-rate’, located in

Service receiver being a ‘body corporate’ located In

Servicetax payable by Service Receiver

Servicetax payable by Service Provider

Taxable Territory

Taxable Territory

50%

50%

Non-Taxable Territory

Taxable Territory

100%

0%

Taxable Territory

Non-TaxableTerritory Where POP –Outside India

Not – Taxable

Not – Taxable

Where POP –Inside India

0%

100%

Non-Taxable Territory

Exempt

Exempt

Non-TaxableTerritory

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C.V.O. CA’S NEWS & VIEWS

Basically if in any case service provider or receiver if located outside India and according to Place of provision rules the Service is taxable in India then the party who is located in India shall be liable to pay serviceTax. Reverse Charge in case of Small Service Provider Under Service Tax a small scale service provider has an option of availing service tax exemption in case the aggregate turnover value of taxable services does not exceed Rs 10 Lakhs in a Financial Year Service Provider who is availing exemption of 10 Lakhs is not liable for servicetax on 50% portion. However Service recipient is not eligible to claim general exemption limit of 10 lakhs. Thus, the service recipient shall pay servicetax under reverse charge from the beginning itself. The service recipient has the option of choosing the valuation method as per choice, independent of the valuation method adopted by the service provider based on the availability of data. Place of Provision of Service Service tax is payable on services provided in taxable territory. To determine whether service is provided in taxable territory , Place of Provision of Service rules are prescribed. Works Contracts is entered for Immovable Property (Rule 5) “The place of provision of services provided directly in relation to an immovable property, including services provided in this regard by experts and estate agents, provision of hotel accommodation by a hotel, inn, guest house, club orcampsite, by whatever name called, grant of rights to use immovable property, services for carrying out or co-ordination of construction work, including architects or interior decorators, shall be the place where the immovableproperty is located or intended to be located.” Basically if the immovable property is located in India then POP for all services in relation to such immovable property shall be deemed to have been provided in India. Works contracts is entered for Movable Property (Rule 4) “The place of provision of following shall be the location where services are actually performed. It means where the goods are made available by service receiver at the place of service provider, the place of provision would be the ‘place of service provider’ or vice versa. Point of Taxation Point of Taxation means the point of time when a service shall be deemed to have been provided so service provider can pay service tax by the 5th day or 6th day of month/ quarter as the case maybe. In most of the services Rule 3 of Point of Taxation rules is followed which says that point of taxation for a service shall be the date of invoice or date on which payment is received whichever is earlier. If the invoice is not issued within 30 days of completion of service than the point of taxation for such service provided shall be the date of completion of service. However the point of taxation rules are different in case of Continuous supply of services which is explained as below. Continuous supply of service means any service which is provided, or to be provided continuously or on recurrent basis, under a Contract, for a period exceeding three months with the obligation for payment periodically or from time to time OR

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VOL. 19 NO. 6 / DECEMBER 2015

C.V.O. CA’S NEWS & VIEWS

Where the Central Government, by a notification in the Official Gazette, prescribes provision of a particular service to be a continuous supply of service, whether or not subject to any condition. As per Notification No. 38/2012-ST Service portion in execution of Works contract Service shall be treated as continuous supply service. The POT for Service Provider in case of ‘continuous supply of services’ would be determined as under:Situation

Point of Taxation

Event Completed & Invoice Issued within 30 Days

Date of Issue of Invoice

Event Completed but invoice not issued within 30 Days

Date of Completion of Event

Event Completed & Invoice not issued but payment is received within 30 Days

Date of such Payment

Advance payment received before completion of event

Date of receipt of each such Advance

The POT for Service receiver in case of ‘continuous supply of services’ would be determined as under:Upto 30.09.2014 According to the said rule, the POT in relation to service receiver would be the date of payment to service provider subject to the condition that payment has been made within six months from the date of invoice. If payment is not made within 6 months then date of invoice shall be the point of taxation and service receiver will have to pay interest for such period of 6 months. On or after 01.10.2014 Amended by Notification No. 13/2014-ST Dated 11.07.2014 POT in relation to service receiver would be the date of payment to service provider subject to the condition that where the payment is not made within a period of three months of the date of invoice, the point of taxation shall be the date immediately following the said period of three months. Negative List U/s 66D Vs Mega Exemption Notification No.25/2012 Negative list u/s 66D:- the services mentioned under negative list are non taxable service which means they are out of coverage of service tax. Mega Exemption vide Notification 25/2012:- under this service mentioned are taxable but exemption has been provided through the notification. And any changes in this can be done by notification. Exemption available to construction and Works contract activities under Mega Exemption List is tabulated below:Service Receiver Description

1

Non Commercial Structures A Civil structure or any other original Works meant predominantly for use other than for commerce, industry, or any other business or profession ienoncommercial structures. This exemption is withdrawn w.e.f from 01-04-2015 by notification no. 6/2015-ST dtd. 01.03.2015.

Government, Local Authority, Governmental Authority

YES

Type of Work Others

Original Work

NO

“The way we see the problem is the problem.” – Stephen Covey

YES

Other than original Work

YES

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C.V.O. CA’S NEWS & VIEWS

A historical monument, archaeological site or remains of national imp. , archaeological excavation, or antiquity specified under ancient Monuments and archaeological sites and remains Act,1958

YES

NO

YES

YES

A structure meant for funeral , burial or cremation of deceased

YES

YES

YES

YES

Public Service- Structures A structure meant predominantly for use as an educational establishment, Clinical Establishment and as an art or cultural establishment.This exemption is withdrawn w.e.f from 01-04-2015 by notification no. 6/2015-ST dtd. 01.03.2015.

YES

NO

YES

YES

A building used meant predominantly for religious use by general public and owned by an entity registered under 12AA

YES

YES

YES

YES

A residential complex predominantly meant for self-use or the use of their employees. This exemption is withdrawn w.e.f from 01-04-2015 by notification no. 6/2015-ST dtd. 01.03.2015.

YES

NO

YES

YES

A civil structure or any other original Works pertaining to a scheme under Jawaharlal Nehru National Urban Renewal Mission or Rajiv AwaasYojana

YES

NO

YES

YES

Low cost houses up to a carpet area of 60 sq. mtr. per house in a housing project approved by competent authority empowered under scheme of Affordable Housing in Partnership framed by Ministry of Housing and Urban Poverty alleviation , GOI

YES

YES

YES

NO

A single residential unit otherwise than as a part of residential Complex

YES

YES

YES

NO

YES

NO

YES

YES

Residential Structures 6

7

8

9

Transport Infrastructure 10

12

Canal, dam or other irrigation Works

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Pipeline , conduit or plant for water supply, water treatment or sewerage treatment or disposal

YES

NO

YES

YES

An airport, port or railways including monorail or metro. This exemption to airport and Port is withdrawn w.e.f from 01-04-2015 by notification no. 6/2015-ST dtd. 01.03.2015.

YES

YES

YES

NO

A road, bridge, tunnel or terminal for road transportation for use by general public

YES

YES

YES

YES

Post-harvest storage infrastructure for agricultural produce including a cold storage for such purpose

YES

YES

YES

NO

Mechanised food grain handling system machinery or equipment for units processing agricultural produce as food stuff excluding alcoholic beverages

YES

YES

YES

NO

A pollution control or effluent treatment plant except located as a part of a factory

YES

YES

YES

YES

Other Structures 14

15

16

“Governmental authority” w.e.f30.01.2014 means an authority or a board or any other body; (i) Set up by an Act of Parliament or a State Legislature; or (ii) Established by Government, with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution. Kindly note exemption is only available in respect of executionary activities like construction, erection commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration etc. Pure Consultancy services like architect services, engineering consultancy etc. are taxable. Kindly note that if a sub-Contractor is providing services by way of Works contract to the mainContractor, then it shall be exempt if the main Contractor is engaged in providing exempt services of Works contracts. Cenvat Credit in relation to Works Contract The CENVAT credit scheme allows a manufacturer as well as a service provider to avail credit of duty of excise paid on inputs or capital goods and service tax paid on input services. Such credit could be utilised for payment of duty of excise on final products or service tax on the taxable service Rule 2(k) and Rule 2(l) of Cenvat Credit Rules provides that Cenvat Credit would not be available in respect of input/input services used for – (a) Construction or execution of Works Contract of a building or a civil structure or part thereof. (b) Laying of foundation or making of structures for support of capital good. Except for providing construction or Works Contract services.

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C.V.O. CA’S NEWS & VIEWS

Illustration Mr. A has hired Mr. B as a Works Contractor for laying foundation. Mr. B is liable to pay service tax of Rs 1,00,000. Mr. B Contractor has hired another sub-Contractor .The sub-Contractor charged Rs 50,000 to Mr. B. Ans. Mr. A shall not be eligible to claim credit of Rs 1,00,000 which he must have paid to Mr. B. Mr. B shall be eligible to claim credit of Rs 50,000 and will have a net liability of only Rs. 50,000 since he is providing construction or Works Contract services. Kindly note the various conditions for availment of service tax credit in different scenarios Situation

Time of Credit

Where 100% of Service Tax is to be charged by service provider in invoice i.e. No Reverse Charge

on or after the day on which the invoice,bill or, as the case maybe, challan referred to in rule 9 of thesaid rules, is received.Credit needs to be reversed if payment to service provider is not made within 3 months.

Where 100% of service tax is to be paid by service recipient i.e. 100% reverse charge scheme

after the service tax paid on the basis of challan

In case of partial reverse charg emechanism for portion of servicetax charged in the invoice

on or after the day on which the invoice,bill or, as the case may be, challan referred to in rule 9 of thesaid rules, is received. Credit needs to be reversed if payment to service provider is not made within 3months.

In case of partial reverse charge mechanism for portion of service tax to be paid by service receiver directly to the Government

On or after the day on which payment is made of value of input service to the service provider and payment of service tax to the Central Government

In all cases credit has to be taken within six months from the date of issue of invoice, bill or as the case may be, challan referred in rule 9. Conclusion The topic of Works Contract is very dynamic and challenging. In this article a humble attempt has been made to understand the various intricacies involved in this topic. There can be varied views which can have altogether different conclusions. All such ideas are always welcomed as this will only help bring in more clarity and transparency. As it has been rightly said,” Knowledge has to be improved, challenged, and increased constantly, or it vanishes.”

Congratulations Heartiest congratulations to CA Purav Gala our CVOCA Member on being elected as the President of The Institute of Internal Auditors (IIA), Bombay Chapter in October 2015. Another Feather in the cap for CVOCA Association. Purav is the youngest president to be elected at IIA and also a honorary faculty on Corporate Governance at We School a premier business school. Our best wishes for his tenure as President.

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