In re KDS Services (P) Ltd. (GST AAR Uttar Pradesh)
Question 1- Whether the Project Development Service (i.e. Detailed Project Report Service and Project Management Consultancy services (‘PMCS’) provided by the applicant to the recipient under the Contract from District Urban Development Agency (herein after referred as “DUDA”) which is District Level Agency of State Urban Development Agency (SUDA) and the Project Management Consultancy services (‘PMC”) under the Contract for PMAY would qualify as an activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243 W respectively, of the Constitution of India?
Answer 1- The Services rendered under the contract with District Urban Development Agency, Uttar Pradesh (DUDA), and for PMAY are in relation to functions entrusted to Municipalities under Article 243 W and to Panchayats under Article 243G of the Constitution of India.
Question 2- If answer to first question is in affirmative then, whether such services provided by the applicant would qualify as Pure services (excluding works contract service or composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental Authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243 W of the Constitution, as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, , as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST’) and corresponding Notifications No. KA.N.I.-2-843/X1- 9 (47) / 17-UP. Act-1 – 2017 – Order – (10) -2017 Luck now, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017 (‘UPGST Act’), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
Answer 2- Such services would qualify as Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” and accordingly exempt from the payment of GST duly covered in SI. No 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, issued under Central Goods and Services Tax Act, 2017 (CGST/Act), and corresponding notifications issued under Uttar Pradesh Goods and Services Tax Act, 2017 (UPGST Act).
FULL TEXT OF THE ORDER OF AUTHORITY FOR ADVANCE RULING,UTTAR PRADESH
1. M/s KDS Services (P) Ltd, 2nd Floor, Oil & 012, Parshvanatha Planet Plaza, Vibhuti Khand, Gomti Nagar, Lucknow-226010, (here in after referred to as the applicant) is a registered assessee under GST having GSTIN: 09AADCK2144H2ZN.
2. The Applicant has submitted an application for Advance Ruling dated 19-05-2022 enclosing duly filled Form ARA-01 (the application form for Advance Ruling).
3. The Applicant in his application sought Advance Ruling as follows : –
(1) Whether the Project Development Service (i.e. Detailed Project Report Service and Project Management Consultancy services (‘PMCS’) provided by the applicant to the recipient under the Contract from District Urban Development Agency (herein after referred as “DUDA”) which is District Level Agency of State Urban Development Agency (SUDA) and the Project Management Consultancy services (‘PMC”) under the Contract for PMAY would qualify as an activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India?
(2) If answer to first question is in affirmative then, whether such services provided by the applicant would qualify as Pure services (excluding works contract service or composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental Authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243 W of the Constitution, as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST’) and corresponding Notifications No. KA.N.I.-2-843/X1-9 (47) /17-UP. Act-1 – 2017 – Order – (10) – 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017 (‘UPGST Act’), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
4. As per the declaration given by the applicant in Form ARA-01, the issue raised by the applicant is neither pending in any proceedings nor decided in any proceedings in the applicant’s case under any of the provisions of the CGST Act, 2017/UPGST Act, 2017.
5. The applicant has submitted following facts-
(1) District Urban Development Agency (DUDA), Gorakhpur which is District Level Agency of State Urban Development Agency (SUDA) awarded the work order and entered into an agreement with “M/s KDS SERVICES PRIVATE LIMITED” (the Applicant) for Preparation of Detailed Project Report (DPR) and providing Project Management Consultancy Service (PMC) services under Pradhan Mantri Awas Yojna (PMAY in short).
(2) Under the Department of Urban Employment and Poverty Alleviation Program at the state level, SUDA has been constituted as the nodal agency in the Uttar Pradesh government. This agency is registered under the Societies Registration Act with effect from 20th November, 1990. At the district level District Urban Development Agencies (DUDAs) have been established. Through these agencies (SUDA/DUDA), schemes for social and economic up liftment of the urban poor are being implemented. In the direction of all-round up liftment of the urban poor by the Department of Urban Employment and Poverty Alleviation Programme, the following scheme is being operated mainly through the State Urban Development Agency (SUDA) – Pradhan Mantri Awas Yojana-Housing for All (Urban) Mission.
(3) SUDA Lucknow is a State Level Nodal Agencies (SLNA) for PMAY (U) in Uttar Pradesh. SUDA through its Director invited technical and financial proposals from eligible Consultancy Firms / Agencies/ Companies for Preparation of Detailed Project Report (DPR) and providing Project Management Consultancy Service (PMC) services under Pradhan Mantri Awas Yojna (PMAY) for Projects under Beneficiary Led Construction in 635 ULBs in Uttar Pradesh by its Request for Proposal (RFP) vide Invitation No. 708/01 /29/HFA/2016-17 dated 01-06-2017
(4) Pradhan Mantri Awas Yojna- The Housing for All (Ministry of Housing & Urban Poverty Alleviation Government of India) Mission for urban area is being implemented to provide central assistance to the implementing agencies through States and UTs for providing houses to all eligible families/ beneficiaries. Mission seeks to address the housing requirement of urban poor including slum dwellers and non-slum dwellers of Economic Weaker Section (EWS) of annual income up to Rs. 300000 and Lower Income Group (LIG) of Annual Income up to Rs. 300001 to Rs. 600000 by ensuring a pucca house to all eligible urban households by the year 2022, when Nation completes 75 years of its Independence through following programme verticals :-
> Slum rehabilitations of slum dwellers with participation of private developers using land as a resource
> Promotion of affordable housing for weaker section through credit linked subsidy
> Affordable housing in partnership with Public and Private sectors
> Subsidy for Beneficiary- Led individual house construction
(5) District Urban Development Agency (DUDA), is organizational extension of SUDA in various Districts of Uttar Pradesh. DUDA works on same lines of objectives in a district on which SUDA works in the entire state of Uttar Pradesh.
(6) Principal Secretary U.P. Govt, wrote a letter to Director SUDA vide its Letter No. 483/2018/1584/69-l-2018-14(139)/2015 TC Dated 04-09-2018 to provide instructions to District Magistrates to choose an agency as per the list of agencies mentioned in the said letter, or any “New Agency” by the District Magistrate/Authorized Officer for “Preparation of Detailed Project Report” and providing “Project Management Consultancy Service” under Pradhan Mantri Awas Yojna (PMAY) in their districts.
(7) DUDA Gorakhpur by District Magistrate of Gorakhpur has given work order vide ref no. 1295/DUDA dated 05-01-2022 and entered into an agreement no. 1294/DUDA/2021-22 dated 04-01-2022 with M/s. KDS SERVICES PRIVATE LIMITED, 2nd Floor, 011 And 012, Parsvanath Planet Plaza, Vibhuti K.hand, Gomti Nagar, Lucknow, Uttar Pradesh, 226010 (applicant) for “Preparation of Detailed Project Report” and providing “Project Management Consultancy Service” under Pradhan Mantri Awas Yojna (PMAY) specifying the terms of reference and scope of work as per model RFP of SUDA referred above.
(8) Though the work order has been allotted by DUDA but the billing by the applicant will be done to SUDA and payment shall also be released by SUDA. Director SUDA is also authorized to direct the applicant for any additional work required by PMAY which is not covered under the agreement but necessary for PMAY.
(9) The applicant is providing no other services to SUDA/DUDA other than the services mentioned in scope of work mentioned in section-5 of RFP No. 708/01/29/HFA/2016-17 for preparation of DPR and providing Project Management Consultancy (PMC) Service.
(10) SUDA has been established as a state level nodal agency, under the department for Urban Employment and Poverty Alleviation by Uttar Pradesh Government to carry out any function entrusted to a municipality under article 243W of the Constitution. As per the “Memorandum of Association of State Urban Development Agency”, it’s main objectives shall be-
(a) To identify the urban poor in the state.
(b) To draw up plans and formulate schemes for the upliftment of the urban poor in the state.
(c) To implement schemes for the benefit of the urban poor either directly or through other agencies engaged in this direction, whether private, public or cooperative,
(d) To review the progress of the execution of these activities as well as effectiveness of the benefits directed towards the urban poor,
(e) To set up or establish any specific service such as training facilities, infrastructural etc. in furtherance of the economic interest of the urban poor.
(11) District Urban Development Agencies (DUDAs) have been established at the district level. DUDA as mentioned above is an organizational extension of SUDA in various Districts of Uttar Pradesh. DUDA works on same lines of objectives in a district on which SUDA works in the entire state of Uttar Pradesh. . As per the “Memorandum of Association of “District Urban Development Agency Gorakhpur”, it’s main objectives shall be-
(a) To identify the urban poor in the District.
(b) To draw up plans and formulate schemes for the upliftment of the urban poor in the District.
(c) To implement schemes for the benefit of the urban poor either directly or through other agencies engaged in this direction, whether private, public or cooperative.
(d) To review the progress of the execution of these activities as well as effectiveness of the benefits directed towards the urban poor.
(e) To set up or establish any specific service such as training facilities, infrastructural etc. in furtherance of the economic interest of the urban poor.
(12) Further, Pradhan Mantri Awas Yojana-Housing for All (Urban), Ministry of Housing and Urban Affairs, the PMAY is a Scheme to provide central assistance to Urban Local Bodies (ULBs) and other implementing agencies through States/UTs for Rehabilitation of existing slum dwellers using their land as a resource through private, participation, and affordable Housing in Partnership.
(13) Furthermore, the matters listed in the 11th and 12th schedule to the constitution (details 243G and 243W, respectively), as functions pertaining to Panchayats/Municipality, are inter alia:-
(a)Safe water for drinking,
(b) Maintenance of community assets,
(c) Family welfare,
(d) Markets and Fairs,
(e) Poverty Alleviation Programmes,
(f) Regulation of land use and construction of land buildings,
(g) Urban planning including the town planning,
(h) Planning for economic and social development,
(i) Urban poverty alleviation,
(j) Slum improvement and up-gradation.
(14) The scope of work by the applicant with main contractor is as under-
A. Scope of work under Preparation of DPR:–
> 100% physical verification includes door survey, collection of land documents and consent letters from the beneficiaries as per HFAPOA (Housing for All by 2022- Plan of Action), data collection, data verification and data compilation.
> Inclusion of present status and proposed works of infrastructure details.
> MIS Entry.
> Key stakeholder consultations.
> Preparation of beneficiaries wise detailed Architectural/Engineering designs. Drawing and estimates for all sizes of plots, project structuring under appropriate development and funding mechanism. .
> Assistance in obtaining appropriate approvals from concerned agencies/departments..
> Appropriating all necessary data in reference to Slum Free city Plan in the DPR.
> The DPR should be complete in all respect with all report drawings, statements and documents necessary for obtaining the grant from the Government of India.
B. Scope of Work under Project Management Consultancy (PMC)/Supervision Services:-
> PMC will coordinate, execute and monitor the activities leading to the construction of approved DUs (Dwelling units) by Govt, of India.
> All the activities till the completion of DUs will be taken care of by PMC.
> PMC shall also administer the works by the beneficiaries and ensure that the agreement between the ULBs and beneficiaries whether related to quality or quantities of work are executed in accordance with its provisions.
> PMC shall attach Beneficiaries to the project in PMAY-MIS and also upload Annexure 7A & 7C.
> PMC shall execute all MIS related work of PMAY (U).
> PMC will supervise the construction work to ensure adherence to the drawings, prescribed high standards of quality and timely completion of the project and verify and certify the progress of the work.
> Preparation of Physical and Financial progress and shall submit to respective ULBs and DUDA.
> Preparation of individual files consist of application, copy of Aadhar Card, bank details, land documents, consent letters etc, stage wise photographs for every beneficiaries.
> PMC will assist Beneficiaries at various stages such as Plinth Level, Lintel Level, roof level and final finishing works and assist to get timely installments.
> PMC will make sure that the project/ DUs construction must complete as per the agreement made with the beneficiaries for the successful and timely implementation of the Project.
> PMC will implement GEO tagging of constructions of all the stages.
> Time extension will not be considered except in very exceptional cases without prejudice to levy of penalties. However any approval for extension of time of completion of the works stipulated in the construction, beneficiaries will be without any additional financial implication.
> PMC shall be fully responsible for quality control and shall put in place such measures as are essential for ensuring regular on site quality check.
> PMC shall submit the tentative organization chart for managing the project so that appropriate decisions are taken quickly. However, the actual number of technical and financial personnel to be deployed and the deployment schedule shall be prepared by the PMC and manually agreed upon after the award of work. .
> Generate and submit to the ULBs time to time progress reports in the agreed formats and the agreed frequency.
> PMC shall also apprise the beneficiaries of the progress or activities of the project on fortnightly/monthly basis.
> Cash flow Chart -Actual and Scheduled & Bar Chart Actual and Scheduled Status of payments of beneficiaries. Photographs of various stages (Before excavation, Foundation, Plinth Level, Lintel Level & Completion) of DUs of each beneficiary, Geo tagging of constructions all the stages Visitors’ Site Inspection. Settlement of all accounts of the beneficiaries with the ULBs.
> Provide project completion report/closure report which shall contain all technical and financial information of the project.
6. The applicant has submitted statement containing the applicant’s interpretation of law as under-
(1) Issue raised in the application is squarely covered under Section 97(2) (b) of the CGST Act 2017 being a matter related to applicability of a notification issued under the provisions of this Act.
(2)As per Constitution of India the text of Article 243G and 243W stands as follows-
Functions entrusted to Panchayats as laid down under section 243G of the Constitution of India are:-
“Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to-
(a)the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.”
Functions of Municipality as laid down under section 243W of the Constitution of India are:-
“Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow,-
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to,-
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.”
(3)According to foregoing discussions it may be construed that the Consultancy services rendered i.e. DPR and PMC under the contract with District Urban Development Agency, Gorakhpur (DUDA) as per scope of RFP issued by SUDA, and for PMAY are in relation to functions entrusted to Municipalities under Article 243G and to Panchayats under Article 243 W of the Constitution of India
(4) Now coming to second question for consideration which is a corollary to the first, when answer to the first is in affirmative. Since it may be established that answer to the first question is in affirmative, moving to decide as to whether such services provided would qualify as “Pure services (excluding works contract service or other composite supplies involving supply of any goods)” as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, (relevant portion attached as per Annexure- 7), as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (‘CGST’) and corresponding Notifications No. KA.N.I.-2-843/X1-9 (47) / 17-UP. Act-1 – 2017 – Order – (10) – 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017, where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
(5) The extracts of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, are as follows:
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