HC provides Guidelines for calculation of tax difference in works contract executed prior to introduction of GST

Case Law Details

Case Name : Sri Chandrashekaraiah Vs State of Karnataka (Karnataka High Court)

Appeal Number : Writ Petition No. 9721 of 2019 (T-RES)

Date of Judgement/Order : 11/04/2023

Related Assessment Year :

Courts : All High Courts Karnataka High Court

Sri Chandrashekaraiah Vs State of Karnataka (Karnataka High Court)

Karnataka High Court provided directions/ guidelines for calculation of tax difference on contract value in respect of works contracts executed prior to 01.07.2017 under Karnataka Value Added Tax Act, 2003 and completed after introduction of GST i.e. after 01.07.2017

Facts- The main issue involved in these petitions arises out of the grievance of the Petitioners that in view of the introduction of GST w.e.f 01.07.2017, the Petitioners who have earlier entered into “Works Contract” and had been assessed during the pre-GST regime either under the Composition scheme (COT scheme) or regular VAT assessment scheme( for short ‘the VAT scheme’) under the Karnataka Value Added Tax Act, 2003 ( for short ‘the KVAT Act’) are required and made liable to pay additional tax by way of GST after 01.07.2017, which is a huge differential tax burden not envisaged at the time of entering into agreements under the COT/KVAT schemes during the KVAT regime and as such, petitioners are before this Court by way of these petitions.

Conclusion- The tax component is an independent component which the petitioners/works contractors do not retain as a profit and is a statutory payment to be made. Looking into the nature of payment of GST, the respondents/employers are required to honour the same after determining the differential tax burden post transition to GST, especially where “works contract” was entered into prior to 01.07.2017 during KVAT regime and works are completed pre-GST but payments are made post-GST or where Contracts were entered into prior to 01.07.2017 but partly executed pre-GST and balance work executed post-GST or Contracts for which tenders were invited during KVAT regime and finalised after 01.07.2017 under GST regime or contracts which were invited during KVAT regime under old schedule of rates (SR) but finalised under GST regime and that a certain procedure is required to be followed to determine the amount payable by or to the works contractors/petitioners.

A supplementary agreement may be signed with the Petitioners for the revised GST-inclusive work value for the Balance Work completed or to be completed and in case the revised GST-inclusive work value for the Balance Work, completed or to be completed after 01.07.2017, is more than the original agreement work value, the Petitioners are to be paid /reimbursed, as the case may be, the differential tax amount by the concerned employer.

FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT

Since common questions of law and fact arise for consideration in all these petitions, they are taken up for consideration together and disposed of by this common order. Further, since identical relief’s are sought for in the petitions, for the purpose of convenience, the relief’s sought for in W.P.9721/2019 is reproduced as under;-

(a) Declare that the provisions of GST Act is inapplicable in respect of works contract where ‘provisions of service’ are made prior to 01.07.2017 in so far as petitioners are concerned and consequently that the respondent Nos 4 to 8 have no jurisdiction to either issue notice or to take any coercive steps against the Petitioners under the provisions of the GST Act dated 01.07.2017 produced as Annexure-H ;

(b) Declare that the provisions of Section 7 (3) read with clause 6 of Schedule II of the GST Act is ultra-vires Article 366 (12A), (26A) (29A) (b) & (f) the Constitution in view of and settled principles of law laid down by the Hon’ble Supreme Court regarding “works contract” and consequently that the respondent Nos. 4 to 8 have no jurisdiction to either issue notice or to take any coercive steps against the Petitioners under the provisions of the GST Act for “works contract” entered into post 01.07.2017 ie after the GST Act came into effect which is produced as Annexure H; and

(c) Direct the respondent No. 1 to consider the representations as per Annexure – C-1, Annexure-C-2 and Annexure- C-3 all dated 24.11.2018 in tandem with Annexures – D, E1 to E6; and

(d) Pass such other orders as may be deemed appropriate under the circumstances of the case, in the ends of justice.

2. The main issue involved in these petitions arises out of the grievance of the Petitioners that in view of the introduction of GST w.e.f 01.07.2017, the Petitioners who have earlier entered into “Works Contract” and had been assessed during the pre-GST regime either under the Composition scheme (COT scheme) or regular VAT assessment scheme( for short ‘the VAT scheme’) under the Karnataka Value Added Tax Act, 2003 ( for short ‘the KVAT Act’) are required and made liable to pay additional tax by way of GST after 01.07.2017, which is a huge differential tax burden not envisaged at the time of entering into agreements under the COT/KVAT schemes during the KVAT regime and as such, petitioners are before this Court by way of these petitions.

3. The Petitioners herein are class-I contractors who have entered into ‘works contract’ with various State Govt agencies as employers and petitioner contractors and the agreements were entered into at a point of time when the KVAT Act and Finance Act 1994 were in force. It is the contention of the Petitioners that they were registered under KVAT by obtaining TIN number and after introduction of GST from 01.07.2017, they have obtained GST registration numbers specifically and individually. Most of the Petitioners are covered under the composition scheme in terms of Section 15 read with Rule 135 of the KVAT Act except for a few Petitioners who are under the regular VAT assessment under KVAT Act. For the Petitioners who are covered under the composition scheme, the tax under KVAT Act was at 4% on the transaction value of the contract and for those who are covered under the regular VAT assessment, it was either 5% or 12% as the case may be. Under the Finance Act 1994, service tax had been exempted in respect of the Works Contract rendered to Government and statutory agencies and therefore, there was no Service Tax which was liable to be paid by the Petitioners on the works contract executed by them. The Petitioners who opted for the composition scheme under Section 15 were not entitled the claim input credit or CENVAT input in case of there being any inter-State purchase in the course of execution of works contract. Petitioners were filing their returns in Form 100 by paying 4% composition tax on receipts and the employers would deduct 4% tax and certificate was being issued in Form 156 of the KVAT Act and the amount which was deducted is credited to the VAT account of the Petitioners.

4. Petitioners contend that 01.07.2017 when the Goods and Services Tax (GST) Act came into effect/force, the works contract was treated as “deemed service” and the Petitioners were liable to pay GST at 18% from 01.07.2017 to 21.08.2017 and at 12% from 22.08.2017 onwards. It is this differential tax amount arising out of change in tax regime from VAT to GST with effect from 01.07.2017 which has resulted in a heavy burden being imposed upon the Petitioners. It is contended that there are instances where the Petitioners have already been carried out and completed the works even prior to 01.07.2017 for which inspection and invoices are yet to be raised or payments are yet to be received by the Petitioners. There are also instances where works have commenced and most of the work is completed but invoices are yet to be raised by means of inspection to be conducted by the designated/competent authority to such works. There are contracts which are entered prior to 01.07.2017 during the KVAT regime and works continued during GST regime, contracts which are entered prior to 01.07.2017 under the KVAT regime where works are completed and the payments are due and payable under GST regime as well as contracts for which tenders were called during VAT regime and finalized during GST regime but under old schedule of rates (SR).

5. It is contended that imposition or levy of indirect tax is permissible where the supplier of service is required to pay taxes after collecting the same from the recipient of service/employer of works contract. The GST moves down the supply chain till the time and at each stage, the seller pays GST for the Government and collects it from the buyer on the invoice. The Petitioners who have rendered service to the Respondent State Govt agencies, are required to collect and pay the taxes. The Petitioners had given representations to the 1^st Respondent wherein the Petitioners have contended that the Central Government more particularly the Department of Railways has come out with a scheme for the purpose of ensuring additional burden of tax as per GST regime is absorbed by the Department while taxing under the GST. It is contended that the taxable incidence as per Act in so far as contractor is concerned is fixed and the tax on the differential amount in the invoice would have to be borne by the recipient of the service i.e., the employer. It is contended by the Petitioners that the State of Maharashtra, State of Odisha, State of Andhra Pradesh & Telangana and even in State of Karnataka the differential amount has been ordered to be paid to the contractors and that the Petitioners have to treated the same way as per principles of parity. It is contended that the Petitioners had given representations to the 1^st Respondent Government to come out with guidelines to absorb the differential tax burden relating to works contract under GST. Under these circumstances, petitioners are before this Court by way of the present petition.

6. The respondent – State and other respondents have filed their statement of objections inter alia contending that for works contract executed prior to 01.07.2017, GST Act is inapplicable. It is contended that for works contract entered prior to 01.07.2017 where portion of the work has been executed prior to 01.07.2017 it will be taxed under erstwhile KVAT Act and for those works executed after 01.07.2017, it will be taxed under the provisions of GST Act. It is also contended that for works entered into and executed after the introduction of GST only the provisions of GST Act will be applicable. It is contended that the provisions of GST Act will be inapplicable to the portion of the work executed prior to 01.07.2017 and mere issuance of invoices after 01.07.2017, would not render work taxable under the GST Act. They have further contended that the onus is on the Petitioners to declare and pay tax under the KVAT Act on that portion of the work executed prior to 01.07.2017 and similarly declare and pay taxes on GST on that portion of the work executed after 01.07.2017. It is further contended by the Respondent that the representations / requests given by the Petitioners are under consideration by the Respondent No.1. It is therefore submitted that there is no merit in the petitions and the same are liable to be dismissed.

7. Heard Sri. D.R. Ravishankar, learned Senior counsel appearing for Sri. Naveen Gudikote.S for the Petitioners and Sri. Hema Kumar, learned Additional Government Advocate for the respondent-State and the respective learned counsel appearing for the remaining respondents and perused the material on record.

8. On instructions, learned Senior counsel for the petitioners submitted that for the present, the challenge to the vires of the GST Act was not being pressed by the Petitioners who would be satisfied, if the respondents would act upon the petitioners’ representations/requests and absorb and pay the differential tax burden. In addition to reiterating the various contentions urged in the petitions and referring to the material on record, learned Senior counsel for the petitioners submits that the petitioners are entitled to the reliefs sought for by them and appropriate orders deserve to be passed in the present petitions. In support of his contentions, learned Senior counsel placed reliance upon the State Government Circulars dated 03.01.2020 and 14.12.2020 as well as upon the following decisions:-

(i) MAS Constructions vs. Hubballi Dharwad Smart City Limited – W.P.No.2804/2021 dated 22.09.2021;

(ii) Dhalbaleshwar Pattnaik vs. State of Orissa – 2020 SCC Online ORI 623;

(iii) Subaya Construction Limited vs. Tamilnadu Water Supply and Sewage Board – WP (MD) 15967 / 2020 dated 08.03.2021;

(iv) Bhagawathi Construction vs. Union of India – (2022) 06 CCHGST 0359.

9. Per contra, learned AGA as well as the learned counsel for the other respondents, in addition reiterating the various contentions urged in their statement of objections submit that there is no merit in the petitions and the same are liable to be dismissed.

10. I have given my anxious consideration to the rival submissions and perused the material on record.

11. It is an undisputed fact that the Petitioners herein are class-I contractors who have entered into ‘works contract’ with various State Govt agencies and that the agreements were entered into at a point of time when the KVAT Act and Finance Act 1994 were in force. It is also not in dispute that the Petitioners are either covered under Composition scheme or regular VAT assessment and that on 01.07.2017 when the GST Act was implemented pan India, the said works contract was treated as “deemed service” and the Petitioners became liable to pay GST. It is this differential tax amount arising out of change in tax regime from VAT to GST which cast an additional tax burden on the Petitioners, which is the subject matter of the present petitions.

12. Before adverting to the rival contentions, it is necessary to refer to the State Government Circular dated 03.01.2020, which reads as under:-

“With reference to the above, your request for clarification on Tax calculation for the pre- GST period and post-GST period in the running bills of works has been examined by the GM (PF), KUIDFC and has suggested the following procedure for calculating Taxes for pre-GST period and post-CST period as follows:

1. Calculate the balance works to be completed in the original contract.

2. Derive the rate of materials, KVAT items required to complete the balance works.

3. Deduct the “KVAT” amount from those materials and the service tax also.

4. Add the applicable “GST” on those items.

5. Input Credit on the materials is to be arrived at and to be set at against the output GST (Billed to the Smart City) In this regard, a copy of the detailed report submitted by the Consultants M/s.S.R.& M.R. Associated, Chartered Accountants to KUIDFC on goods & service tax matters is enclosed herewith for your reference and further action in the matter.”

13. Subsequently, the State Government issued one more Circular dated 14.12.2020, which reads as under :-

No: ED/212/FC2/2020

Finance Department (PC-2) KWB/CAO/AS2/AMRUT/GST/2020-21

Dated:14.12.2020

The proposal of the Administrative Department has been examined. Finance Department opines as follows:

“Karnataka Urban Water Supply & Sewerage Board, Bangalore has sought clarification on GST calculation for works contract wherein agreements were executed prior to 01.07.2017 at old schedule rate.,

Generally the turnover related to the supply of goods or services or both effected before 01.07.2017 (appointed date of implementation of GST) should be taxed under the provisions of the earlier laws and not GST laws. Hence the portion of the contracts which are already executed earlier to 01.07.2017 must be taxed under the erstwhile Karnataka Value Added Tax Act and the Service Tax Act. This turnover, in addition to the certified works, also must include the turnover related to the uncertified works which are already executed but yet to be certified. Only that portion of the contract which are executed after the implementation of the GST, i.e., after 01.07.2017 are liable to tax under the GST Act.

In case where the works contractor has in stock, materials which are purchased before 01.07.2017 and not incorporated into the contract then the contractor has to claim the transitional rebate of the taxes paid under the earlier laws and the amount eligible would be credited to the Input Tax Credit Ledger of the contractor.

With regarding to the issue of the impact of change of tax regime is concerned a detailed annexure explaining the methodology of calculation of the impart of change of tax regime along with an illustration is placed in the file. (Annexure A & 13)

Further, the tax difference should be calculated on each works separately. Based on the result obtained on calculation of the tax difference on the contract value, concerned department / Authority has to decide whether contract agreement needs to be changed or not. Hence, the applicant may be informed to submit a proposal to the concerned department from whom the contract was awarded.

(Approved by Additional Chief Secretary to Govt. Finance Department),

Sd/-
(KGayathri)
Under Secretary to Govt.
Finance Department (PW Finance Cell)
Sd/-

Chief Account Officer
KUWS&D Board
Bangalore

14. Both the aforesaid Circulars came up for consideration before the co-ordinate Bench of this Court under identical circumstances in MAS Constructions’s case supra, wherein it was held as under:-

“The petitioner has sought for issuance of an appropriate writ to the respondent to reimburse GST amount of Rs.42,01,582/- to the petitioner and has sought for directions for payment of interest on tax dues at 18% per annum being the statutory interest rate chargeable under Section 50 of the CGST Act, 2017.

2. The petitioner submits that the respondent authority had invited bids pursuant to floating of tender and the petitioner was awarded the contract. It is further submitted that the rates that were finalised as per the bid documents included sales tax component @ 5%. It is to be noted that the tender and work orders were allotted to the petitioner on 07.12.2018 and 29.12.2018 which is admittedly after coming into force of the Goods and Services Act (“the GST Act”, for short).

3. The petitioner submits that necessary payment at the petitioner’s end of the applicable GST being statutory requirement has been made and the details of the payment are as per the table mentioned in Para 11 of the petition, which reads as under:

*Particulars*	*Period*	Balance GST not paid to petitioner
Renovation of Swimming pool and operation	From 14/7/2019 to 30/11/2019	Rs.15,42,727
Rehabilitation of MG Park	From 31/07/2019 to 04/08/2020	Rs.26,58,856
	*Total*	*Rs.42,01,582*

4. The petitioner submits that after having paid the applicable GST, the petitioner has made representations on 01.08.2019 vide Annexure-‘F ‘ and 27.02.2020 vide Annexure-‘H’, whereby the petitioner has called upon the respondent to release the GST amount. The request of the petitioner was taken note of by the respondent authority which has sought for clarification from the Karnataka Urban Infrastructure Development and Finance Corporation (“KUIDFC”, for short) as per their letter dated 06.12.2019. The specific clarification that was sought is as to whether GST is required to be made good to the contractor as it was only 5% of the VAT which was provided for in the contract.

5. The KUIDFC by their communication dated 03.01.2020 has opined as follows:

“With reference to the above, your request for clarification on Tax calculation for the pre-GST period and post-GST period in the running bills of works has been examined by the GM (PF), KUIDFC and has suggested the following procedure for calculating Taxes for pre-GST period and post-GST period as follows:

1. Calculate the balance works to be completed in the original contract.

2. Derive the rate of materials, KVAT items required to comp lete the balance works.

3. Deduct the “KVAT” amount from those materials and the service tax also.

4. Add the applicable “GST” on those items.

5. Input Credit on the materials is to be arrived at and to be set at against the output GST (Billed to the Smart City) In this regard, a copy of the detailed report submitted by the Consultants M/s.S.R. & M.R. Associated, Chartered Accountants to KUIDFC on goods & service tax matters is enclosed herewith for your reference and further action in the matter.”

6. It is not in dispute that the respondent authority had sought for clarification from KUIDFC, communication has been made out to the respondent authority as per the letter dated 03.01.2020 in terms as noticed above.

7. Various other contentions are raised including that the contracts have a dispute resolution clause and accordingly, any dispute relating to the rates or as regards to the assertion of the petitioner that GST paid by him is required to be made good, is a matter to be referred in terms of the dispute resolution clause. However, the petition could be disposed off without recording any finding on such contention.

8. It is to be noticed that clarification on 03.01.2020 by the KUIDFC is clear.

9. The Karnataka Urban Water Supply and Sewerage Board had sought for a clarification relating to implementation of GST in relation to performance of portions of contract after coming into force of GST. The Finance Department by its clarification dated 14.12.2020 has also opined that the tax difference ought to be calculated on each of the works and necessary steps to be taken to decide as to whether contract agreement needs to be changed. While making such clarification, the nature of reconciliation of tax paid in the pre-GST regime as well as taxes as applicable relating to all taxes in post-GST regime has been taken note of. The methodology and impact of change of tax has also been referred to. This stand has been approved by the Additional Chief Secretary to Government, Finance Department. This clarification made in the context of an authority set up under a statute and taking note of the clarification made by the KUIDFC, the respondent is required to act in terms of the clarification made.

10. Further, insofar as tax component is concerned, as the contracts were entered after coming into force of the GST Act, and in light of the opinion expressed by a clarification made on 03.01.2020, the respondent is required to make good the GST after adjusting the amounts of sales tax that was provided for in the contract entered into between the petitioner and the respondent.

11. It is further to be noticed that the tax component is an independent component which the petitioner does not retain as a profit and is a statutory payment to be made. Looking into the nature of such payment of GST, the respondent is required to honour the same in terms of the clarification dated 03.01.2020. The consideration by the respondent to be made within a period of not later than twelve weeks from the date of release of the order.

12. Accordingly, the petition is disposed off.”

15. So also, in the case of Dhabaleshwar Pattnaik Vs. State of Orrisa, referred to supra, certain directions have been given by the Division bench of the said Court as under:

3. In case of work, where the tender was invited before 01.07.2017 on the basis of SOR-2014, but payments made for balance work or full work after implementation of GST, the following procedure shall be followed to determine the amount payable to the works contractor;

(i) Item-wise quantity of work done after 30.06.2017 (i.e. the Balance Work) an its work value as per the original agreement basing on the pre-revised SoR 2014 is to be ascertained first.

(ii) The revised estimated work value for the Balance Work is to be determines 2014 is to be ascertained first. as per the Revised SoR-2014. (In case of rates of any goods or service used in execution of the balance Work not covered in the Revised SoR-2014, the tax exclusive basic value of that goods or service shall be determined by removing the embedded tax incidences of VAT, Entry Tax, Excise Duty, Service Tax, from the estimated Price/Quoted Price.)n

(iii) The revised estimated work value for the Balance Work shall then be enhanced or reduced in the same proportion as that of the tender premium/discount.

(iv) Finally, the applicable GST rate (5%, 12%, or 18% as the case may be) is to be added on the revised estimated work value for the Balance Work to arrive at the GST-inclusive work value for the Balance Work.

(v) A model format for calculation of the GST-inclusive work value for the Balance Work is attached as Annexure. The competent authority responsible for making payment to the works contractor will determine GST inclusive work value for the Balance Work for which agreement executed on the basis of SoR-2014.

(vi) A supplementary agreement shall be signed with the works contractor for the revised GST-inclusive work value for the Balance Work as determines above.

(vii) In case the revised GST-inclusive work value for the Balance Work is more than the original agreement work value for the Balance Work, the works contractor is to be reimbursed for the excess amount.

(viii) In case the revised GST-inclusive work value for the Balance Work is less than the original agreement work value for the Balance Work, the payment the works contractor is to be reduced accordingly. In case excess payment has already been made to the works contractor in pursuance of the origin agreement, the excess amount paid must be recovered from the works contractor.

(ix) These procedures shall be applicable to all works contract including those executed in EPC/Turn-key/Lumpsum mode.

16. So also, in the case of Subaya Construction’s case supra, the Madras High Court held as under:-

“When the Petitioners entered into an agreement with the Respondent-Board, the contract price comprise three components viz., cost factor, profit margin and tax component. There cannot be any contest regarding the cost factor and profit margin. The tax liability will have to borne by the Respondent-Board. The Respondents are directed to reworking terms of the contract and entered into a revised agreement with the Petitioners. The entire exercise shall be concluded within a period of 8 weeks from the date of receipt of copy of this order”.

17. Similarly, in Bhagwati Constructions’ case supra, the Gujarat High Court held as under:

25. The issue that arises for our consideration is, whether the respondents are justified in withholding the refund/reimbursement in favour of the writ-applicants.

26. The Government of India through the Ministry of Railways, had issued an order on 27.10.2017 for the GST neutralization of the contracts. The order reads as under

“Government of India Ministry Of Railways (Railway Board)

New Delhi

No. 2017/CE-I/CT/7/GST, dated 27.10.2017

As per list attached

Sub: Impact of GST on Existing Works Contracts

1. Ministry of Railways have received a number of representations from Zonal Railways, railway contractors and contractors associations with a request that the increased tax liability due to implementation of GST should be borne by railways in works contracts awarded before implementation of GST. The issue was under consideration of Board for some time. It is seen that the impact of GST varies, depending upon the type of work, business model adopted by contractor and also on the state in which these works are being carried out. The impact is much more in labour intensive works like P. Way linking. Earthwork etc.

2. Considering the above, it has been decided to make existing works contracts awarded before implementation of GST, as GST neutral after carefully taking into account the input tax credit available to the contractor, on a case to case basis, on production of documentary evidence. This exercise may involve reimbursement to contractors or recovery from contractors depending upon the tax liability of the contractor before GST and after GST including input tax credit available to the contractor after GST.

3. Zonal Roadways/Production Units may therefore work out modalities through a procedure order with the approval of General Manager is consultation with Principal Financial Advisor & legal cell. Following should be kept in view while framing the procedure order

3.1 For dealing with impact of GST is individual contracts, a supplementary agreement is to be entered in to withthe contractor in consultation with financial advisor in terms of Para 1265 of the Engineering Code.

3.2 A clause is to be added in the supplementary agreement to state that in case there is any further change in the GST tax structure till the date of completion of work or any error is noticed in the calculation of amount payable/recoverable till the release of Final Bill amount to contractor, the same shall be paid by the Railwaysor recovered from the contractor’s bills/security deposit or any other dues of contractor with the Govt of India.

3.3 In case while awarding the contracts, the reasonability of rates was justified by Tender Committee considering the impact of CST, such compensation would not apply.

3.4 For neutralizing GST impact on the works contracts awarded before implementation of GST along withdocumentary evidence, the contractor should submit work sheet of tax liability before GST and after GST dulycertified by chartered accountant engaged by him.

The tax liability of the contractor before implementation of CST should be worked out taking into account all stipulated taxes in force before GST implementation i.e. Excise duty. VAT including VAT on Excise duty. Entry tax, Octroi duty, prevalent Service tax etc., irrespective of whether the same were actually paid by agency or not.

3.5 The rate reasonability and quantities of input materials for which ITC shall be available to the contractor, should be ensured by the executive with due care in consultation with associate finance.

3.6 Sample post checks of the compensation made to the contractor may be got undertaken by the GST consultant engaged by the Zonal Railways/Production Units.

3.7 Recovery, if any, which is required to be done from the contractors, may be regulated as per Section 171(1) of CGST Act 2017.

4. This is issued with the approval of Board (ME, FC, CRB)

(Prem Sagar Gupta)
Executive Director/Civil Engineering (G)/Railway Board

27. Pursuant to such order, the Western Railways issued a Joint Procedure Order dated 21.1.2018 laying downthe procedure for the GST neutralization based upon the policy of the Government of India. The relevant portionof the order reads thus:

“4. The review for GST neutrality is to be done on a case to case basis on the production of various detailed outin the following paragraphs of the JPO

Xxxxxxxxxxxxxxxxxx

8. Procedure to be followed for GST neutralization:

8.1 In accordance with the Railway Board’s letter dated 27.10.2017 all contracts awarded prior to at 01.07:2017 and all such contracts for which tenders were opened prior to 01.07.2017 but finalized after the implementation of GST are to be considered for GST neutralization. However, if any of the tender has been finalized duly considering the impact of GST. then such contract will not be eligible for the proposed GST neutralization

8.2 For dealing with the impact of GST in individual contract, a Supplementary (Subsidiary) agreement is to be entered into by the Executive, with the contractor, duly vetted by Finance, in terms of Para 1265 of the Indian Railway Engineering Code A Supplementary agreement is to be signed by the Original Agreement Signing Authority or by the Authority delegated such powers (Proforma for the agreement is given in Annexure-A).

Xxxxxxxxxxxxxx

8.5 The contractor shall submit a work sheet for On Account/FCC bills for assessing the tax liability before andafter GST including the input tax credit available to the contractor. This shall be duly certified by the Statutory/Tax Auditor auditing the books of the contractor. The tax liability of the Contractor before implementation of GST should be worked out taking into account all stipulated taxes in force prior to the implementation of GST i.e., excise duty, VAT, including VAT on excise duty, entry tax, octroi duty, prevalent service tax etc, irrespective of whether the same were paid by the agency or not for the On Account/FCC Bills.

8.6 On receipt of the Account/Final contract certificate from the executive, the contractor shall submit the following documents (for the on Account/FCC to the Executive for the GST neutralization.

a. The invoice (Bill) duly segregating the GST component from the gross amount of the work executed. This should contain details of GSTIN TIN & STRN numbers-state-wise (if he is working is more than one State alongwith the worksheet.

b. A work sheet for the tax liabilities before GST and after GST, including the list of items for which the to put Tax Credit (ITC) is available for the work. A sample copy of the work sheet is given in the Annexure-B for general guidance. The details given in this worksheet and calculations should be duly certified by Statutory/Tax Auditor auditing books of the contractor. This worksheet shall be submitted for each of the bills, which may have already been passed as per provision of para 15 of this JPO and also for all other bills being processed after the notification of the GST for the contracts falling in the categories in para 1(i) & (iii)and HO GST rates as applicable at the time of actual passing of bills will be adopted.

The worksheet shall contain details of the quantities of all input materials/services procured for the particularwork/works. The contractor shall also certify that the invoices submitted for the work have not been/will not be used for any other work to claim Input Tax Credit (ITC)/refund. The contractor shall also give a certificate thatno refund claims of GST are pending settlement with the GST authorities.

At the Railway end, the component of input materials/services for SOR/USSOR items will be checked with reference to the rate analysis available in the SOR/USSOR for NS items, the executive officer will carry out a detained rate analysis considering the input materials/services required for executing the NS item which will be approved by JAG/Senior Scale ( independent charge)

c. The contractor shall, for the On Account/FCC bills, shall submit all the original Tax Invoices for all the inputmaterial/services procured for the particular work, enfaced with agreement number, in support of the ITC and thesame shall be duly certified by the Statutory/Tax Auditor auditing the books of the contractor.

d. The tax liability of the Contractor, before implementation of GST, shall be worked out for On Account/PCC billstaking into account all stipulated taxes in force before the GST implementation i.e., excise duty. VAT, includingVAT on Excise duty, entry tax, octroi duty, prevalent service tax etc.. Irrespective of whether the same were paidby the agency or not.

e. In case the contractor has procured material from unregistered vendors/suppliers the details of suchprocurement should be included in worksheet

f. The contractor shall submit copies of GST returns GSTRI, GSTR2, GSTR3, GSTR3, etc. as available on GSTNetwork from time to time.

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10. The difference of bill amount arrived at as per the old taxes (before GST) and GST, duly considering the ITC certified by the Statutory/Tax Auditor auditing the books of the contractor, shall be checked by the Executive. The tax liability of the contractor before and after implementation of the GST, submitted by the contractor, shall be recorded in the Measurement Book clearly showing–

Tax liability before GST = Rs…………..

Tax liability after GST = Rs………….

Difference =(+)/(-)= Rs…………..

The bill containing these details shall then be prepared as per the format given in Annexure-B and forwarded to Finance for security and prior vetting The contractors claim will then be admitted to the for passing of the Bill The difference in the tax liability before the GST and after the GST and after the GST shall be reimbursed to the contractor or recovered from the contractor as the case may be.

11. Recovery, if any, from the contractors may be regulated as per section 171 (1) of CGST Act 2017, i.e., any reduction in the rate of tax on any supply of goods or services or the benefit of the Input Tax Credit shall be passed on to the recipient (Railways) by way of a commensurate reduction in the prices. The executive will review all the agreements to ensure that recovery is done, wherever due. The recovery shall be effected from the on account bills on hand and if no accountbills are pending the recovery shall be affected from the final bill/security deposit or any other dues.

28. It is germane to note that paragraph 4 of the JPOs as above provides that the review for the GST neutrality is to be done on case-to-case basis. Further, it is provided in paragraph 8.2 as above of the JPO that a supplementary agreement is to be entered in to by the executive with the contractor for dealing with the impact of the GST in individual contracts Paragraph 8.6 (b) ofthe JPO provides that the contractor will have to provide a work sheet for the tax liabilities before the GST and after the OST including the list of items for which the input tax credit is available for the work. It is further provided that the worksheet should contain the details of the quantities of the input materials/services procured for the particular works. Paragraph 8.6 (C) of the JPO further provides that the contractor shall submit the original tax invoices for all the input material/services procured for the particular work in support of the input tax credit. Paragraph 8.6 (f) of the IPO require furnishing the copies of the GST returns. Paragraph 10 of the JPO provides for calculating differential tax for the contract considering the input tax credit for the contract. A draft of the supplementary agreement is annexed along with the JPO

29. From the reading of the terms of the JPO as aforesaid, the following factual position emerges

(a) The calculation of the GST neutralization is envisaged separately for each contract.

(b) A supplementary agreement is to be entered into by the Railways with the contractor for the purpose of GST neutralization.

(c) The details of the input tax credit are to be provided by the contractor in respect of the input materials used for a particular work.

(d) Reimbursement/refund is to be granted for differential tax liability taking into account for pre-GST and the post-GST tax liability. If at all the post-CST liability for a particular contract is lower than the pre-GST liability, then the amount can also be recovered from the contractor.

30. In the case of the writ-applicants, it is not in dispute that the supplementary agreement has been entered into only with respect to the agreement dated 29.6.2017 executed in connection with the work of E-Tender No. Dy CE(C)/P&D/ADL/HMT-16. The parties to the agreement have clearly agreed to the GST neutralitiesin respect of such contract. Moreover, the writ-applicants have produced a certificate of the Chartered Accountant certifying that no GST-paid inputs have been used in the execution of the contract and, therefore, there was no input tax credit pertaining to this contract. Such facts are not in dispute. If that be so, then the writ-applicants are entitled to refund in terms of the order for the GST neutralization, issued by the Ministry of Railways read with the JPO and the supplementary agreement. In fact, it appears that this was also determined by the respondents themselves by generating a pay order in favour of the writ-applicants.

18. I find considerable force in the submission made by the learned Senior counsel for the petitioners that the tax component is an independent component which the petitioners do not retain as a profit and is a statutory payment to be made; that looking into the nature of such payment of GST, the respondents/employers are required to honour the same after determining the differential tax burden, especially for the Petitioners who are before this court where “works contract” were entered prior to 01.07.2017 during KVAT regime and works are completed pre-GST but payments are made post-GST or Contracts entered prior to 01.07.2017 but partly executed pre-GST and balance work executed post-GST or Contracts for which tenders were invited during KVAT regime and finalised after 01.07.2017 under GST regime or contracts which were invited during KVAT regime under old schedule of rates (SR) but finalised under GST regime and that a certain procedure is required to be followed to determine the amount payable by or to the works contractors/Petitioners.

19. In view of the aforesaid facts and circumstances and the Circulars dated 03.01.2020 and 14.12.2020, which have been followed by this Court in MAS constructions’s case supra, and also the judgments of other High Courts referred to supra rendered under identical / similar circumstances, in order to do substantial justice, I deem it just and appropriate to dispose of the present petitions by issuing appropriate directions in this regard.

20. In the result, I pass the following:-

ORDER

(i) Petitions are hereby disposed of.

(ii) The Respondents-State and other Govt agencies / Respondents who have entered into works contract with the Petitioners are issued the following directions / guidelines:-

(a) Calculate the works executed pre-GST (prior to 01.07.2017) under KVAT regime and payments received by the Petitioners.

(b) The payments received by the Petitioners pre-GST for such of the works executed before 01.07.2017 are to be assessed under KVAT tax regime – either under COT or VAT scheme as applicable.

(d) Derive the rate of materials, KVAT items required or used to complete the balance works.

(e) Deduct the “KVAT” amount from those materials and the service tax, if applicable.

(f) Add the applicable “GST” on those items.

(g) Input Credit on the materials is to be arrived at and be set off as against the output GST, for those assessed under regular VAT.

(h) Further, the “tax difference” should be calculated on such balance works executed or to be executed after 01.07.2017 separately.

(i) Based on the result obtained on calculation of the tax difference on the contract value, concerned department/authority has to decide whether agreement needs to be changed or not.

(j) A supplementary agreement may be signed with the Petitioners for the revised GST-inclusive work value for the Balance Work completed or to be completed as determined above and in case the revised GST-inclusive work value for the Balance Work, completed or to be completed after 01.07.2017, is more than the original agreement work value, the Petitioners are to be paid /reimbursed, as the case may be, the differential tax amount by the concerned employer; so also, in case payments for works completed pre-GST are made post-GST, the concerned employer has to pay or reimburse, as the case may be, the differential tax amount, to the Petitioners.

(iii) Petitioners are directed to submit comprehensive representations to the respective employers/Respondents within a period of 4 weeks from the date of receipt of a copy of this order, irrespective of whether they have completed the works pre-GST or post-GST or payments were received or yet to be received post-GST.

(iv) If such representations are submitted, the respective employers/Respondents are directed to consider and dispose of the same in the light of the aforesaid directions / guidelines as expeditiously as possible and at any rate within a period of 8 weeks from the date of submission of the representations.

(v) In view of the interim orders passed by this Court in the present petitions, such of the petitioners who had not filed their GST returns during the period after 01.07.2017 are permitted to file their returns / amended returns, pursuant to the calculation of the differential tax as per procedure above under GST regime, without insisting on interest or penalty or limitation.

(vi) The GST authorities are also directed not to take precipitative action against the Petitioners for a period of 6 months from the date of receipt of a copy of this order.

(vii) Liberty is reserved in favour of the petitioners to challenge any order / decision passed / taken by the respondents or the authorities, subsequent to this order and also take recourse to such remedies as available in law.