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 1st 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 1st 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;
(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:
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