CA Sanjeev Singhal
[ Covering comprehensive detail of Work contract definition under service tax and VAT , Determination of value rules, partial reverse charge, point of taxation, pop rules, sub contract etc]
A composite contract means a contract which involves transactions involving an element of provision of service and an element of transfer of title in goods in which various elements are so inextricably linked that they essentially form one composite transaction.
The nature and manner of treatment of such composite transactions for the purpose of taxation, i.e. are they to be treated as sale of goods or provision of service, has been laid down by 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 –
“42. 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. For example, the clauses of Article 366(29A) do not cover hospital services. Therefore, if during the treatment of 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 other professionals render service in the course of which can it be said that there is a sale of goods when a doctor writes out and hands over a prescription or a lawyer drafts a document and delivers it to his/her client? Strictly speaking with the payment of fees, consideration does pass from the patient or client to the doctor or lawyer for the documents in both cases.
43. The reason why these services do not involve a sale for the purposes of Entry 54 of List II is, as we see it, for reasons ultimately attributable to the principles enunciated in Gannon Dunkerley’s case, namely, if there is an instrument of contract which may be composite in form in any casother than the exceptions in Article 366(29A), unless the transaction in truth represents two distinct and separate contracts and is discernible as such, then the State would not have the power to separate the agreement to sell from the agreement to render service, and impose tax on the sale. The test therefore for composite contracts other than those mentioned in Article 366 (29A) continues to be – did the parties have in mind or intend separate rights arising out of the sale of goods. If there was no such intention there is no sale even if the contract could be disintegrated. The test for deciding whether a contract falls into one category or the other is as to what is the substance of the contract. We will, for the want of a better phrase, call this the dominant nature test.”
Although the judgement was given in the context of composite transactions involving an element of transfer in title of goods by way of sale and an element of provision of service, the ratio would equally apply to other kind of composite transactions involving a provision of service and transfer in title in immovable property or actionable claim.
The principle emerging from the said judgement is that works contract and catering contract are the only composite contracts which can be split into contract of sale and contract of service.
In case of works contracts and ‘service wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as part of the service’ the ‘dominant nature test’ does not apply and service portion is taxable as a ‘service’ These have also been declared as a service under section 66E of the Act.
Definition of Work Contract
1.1 The term “Works Contract” has not been defined in constitution of India. Constitution of India has also not delegated any power to Central or State Government to define ‘Works contract’. Hence, common understanding of the term is actually more relevant than definition under any tax law. Nevertheless, the definitions under different laws are discussed hereunder for better understanding.
1.2 Under Central Sales Tax Law
Section 2(ja) of Central Sales Tax Act, 1956 defines Works Contract as follows:
“Works Contract means a contract for carrying out any work which includes constructing, altering, building, assembling, manufacturing, processing, fabricating, erection, installation ,fitting out, improvement, repair or commissioning of any movable or immovable property.”
1.3 Maharashtra Value Added Tax Act
Under MVAT Act, Explanation (b)(ii) to section 2(24) of Maharashtra VAT Act states that Works Contract includes an agreement for carrying out for cash, deferred payment or other valuable consideration, the building, construction, manufacturing, processing, fabrication, erection, installation, fitting out, improvement, modification, repair or commissioning of any movable or immovable property.
1.4 Service Tax Law – Under New Regime
Clause (54) of Section 65B of the Act defines ‘works contract’ as under:
“works contract” means a contract wherein transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods and such contract is for the purpose of carrying out construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, alteration of any movable or immovable property or for carrying out any other similar activity or a part thereof in relation to such property.
1.5 The basic requirements for defining a contract to be a works contract remain the same under new negative list regime also. These cumulative requirements are:
(i) There is a transfer of property in goods involved in the execution of such contract, and
(ii) Such transfer of property in goods is leviable to tax as sale of goods (such as sales tax, VAT or WCT,).
It must be noted that the words which are used here are “leviable to tax as sale of goods’, therefore, it is not necessary that VAT has been actually paid on the transfer of property involved in such contract. It is enough if transfer of property is leviable to tax as sale of goods for determining whether such contract is a works contract or not.
(iii) Such contract is for the purpose of carrying out:
(f) fitting out,
1.6 The definition provided under service tax law is an exhaustive definition but simultaneously ends with an inclusive limb i.e. “any other similar activity”. Hence, the last part of the definition ‘for carrying out any other similar activity or a part thereof in relation to such property’ has wide implication and prone to litigation.
1.7 Expansion of Scope of Works Contract
Under the positive list scheme the term “works contract” was defined in explanation to section 65(105); and its scope was restricted to construction related activities, erection, commissioning and installation of plant & machinery etc. However, under new regime the scope of works contract has been enhanced so as to include movable properties also. The effect of this amendment is that now services related to movable properties involving the material therein like authorized service station, repairs and maintenance services, photography services, etc. will fall under works contract service provided the material involved therein is leviable to VAT/sales tax under State VAT Law. These are composite contracts where both service and material value is involved and as such will be covered under the works contract. Thus, the annual maintenance contracts involving material along with service will also fall under the purview of works contract.
Pure labour contracts are outside the scope of works contract as for classifying a contract to be works contract it is necessary that there should be transfer of property in goods involved in the execution of such contract which is leviable to tax as sale of goods.
Contracts for erection, commissioning or installation of plant, machinery, equipment or structures, whether prefabricated or otherwise are to be treated as a works contract provided other conditions are also satisfied.
1.1 Typically every works contract involves an element of sale of goods and provision of service. In terms of Article 366(29A) of the Constitution of India transfer of property in goods involved in execution of works contract is deemed to be a sale of such goods. It is a well settled position of law, declared by the Supreme Court in BSNL‘s case [2006(2) STR 161 (SC)], that a works contract can be segregated into a contract of sale of goods and contract of provision of service.
1.2 In general, the provisions of valuation of service are governed by Section 67 of the Act read with Service Tax (Determination of Value) Rules, 2006. As a general rule, value of taxable service is gross amount charged for a service whether in the form of money or otherwise.
1.3 Under the old regime of service tax, there were following two schemes for valuation of works contract services:
(a) Works Contract Composition Scheme, 2007 – where the service tax was payable @ 4.80% on gross amount charged.
(b) Rule 2A of Service Tax (Determination of Value) Rules, 2006 – where the service tax was payable at normal rate on the service portion of works contract.
1.4 In order to align this rule with the new system of taxation of services based on the negative list the old Rule 2A of said Valuation Rules and Works Contract Composition Scheme, 2007 have been replaced with new unified scheme provided under new Rule 2A by the Service Tax (Determination of Value) Second Amendment Rules, 2012 vide Notification No. 24/2012 Dated 06.06.2012.
1.5 According to new Rule 2A of Service Tax (Determination of Value) Rules,2006, subject to the provisions of section 67, the value of service portion in the execution of a works contract, referred to in clause (h) of section 66E of the Act, shall be determined in the following manner, namely:-
(a) Regular Scheme [Rule 2A(i)]
(b) Standard Deduction Scheme [Rule 2A(ii)]
1.6 Regular Scheme
Rule 2A(i) of the said rules, provides that value of service portion in the execution of a works contract shall be equivalent to the gross amount charged for the works contract less the value of property in goods transferred in the execution of the said works contract.
In other words, Value of works contract service =
|Gross Amount Charged for the Works Contract||100|
|Less: Value of Transfer of Property in Goods||60|
For the purpose of above formula –
(i) Exclusion from Gross Amount Charged:- Value Added Tax or Sales Tax, paid or payable, if any.
In other words, the ‘gross amount charged’ shall not include VAT/Sales Tax/WCT paid on such works contract. It is to be noted that it is not the VAT/Sales Tax/WCT paid on material purchased by the works contractor for such works contract (input) but the VAT/Sales Tax/WCT paid on such works contract by the works contractor (output) for which exclusion is provided.
It must also be noted that exclusion is provided only for VAT/Sales Tax/WCT and not for other taxes, cess, etc. Thus, other taxes, cess such as labour cess, etc. payable on such works contract would not be excluded for determining taxable value under service tax.
(ii) Value of Transfer of Property in Goods (for exclusion purpose)
Where VAT or sales tax has been paid or payable on the actual value of property in goods transferred in the execution of the works contract, then, such value adopted for the purposes of payment of value added tax or sales tax, shall be taken as the value of property in goods transferred in the execution of the said works contract for determination of the value of service portion in the execution of works contract under this clause.
Thus, where the service provider is paying VAT/sales tax under the respective State VAT/sales tax law on the actual value of goods in such works contract, then such actual value of goods shall be deducted from the gross amount charged for such works contract to arrive at the service element on which service tax is payable.
However, there may be a case that the service provider is paying VAT/Sales tax not on the actual value of goods involved in the execution of works contract but under a composition scheme specified under respective State VAT/sales tax law, then service element will consist of following components as mentioned in Explanation (b) to the Rule 2A of said Valuation Rules:
(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; and
(h) profit earned by the service provider relatable to supply of labour and services;
1.7 Standard Deduction Scheme
The Standard Deduction scheme in works contract service is very famous and quite adoptable under service tax because of reduced tax rate and it becomes easy for contractors to charge service tax when it is difficult to either derive the value of works contract or separate it in terms of supply of goods or services. However, like any other tax scheme, it has its own disadvantages.
Rule 2A(ii) provides that where value has not been determined under Rule 2A(i) as above, the person liable to pay tax on the service portion involved in the execution of the works contract shall determine the service tax payable in the following manner, namely:-
In Rule 2A of the Service Tax (Determination of Value) Rules, 2006, category “B” and “C” of works contracts are merged into one single category, with percentage of service portion as 70%; this change has come into effect from 1st October, 2014. This rationalization by way of merger of categories has been made to avoid disputes of classification between these two categories. The new provisions are as under:
|S.N.||In case of works contracts entered into –||ST shall be payable on ___ % of the total amount charged for the works contract|
|(A)||For execution of Original Works||40%|
|(B)||in case of works contract, not covered under sub-clause (A), including works contract entered into for,-
(i) maintenance or repair or reconditioning or restoration or servicing of any goods; or
(ii) maintenance or repair or completion and finishing services such as glazing or plastering or floor and wall tiling or installation of electrical fittings of immovable property
(1) “original works” means-
(i) all new constructions;
(ii) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable;
(iii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise;
(2) “total amount” means –
the sum total of the gross amount charged for the works contract and the fair market value of all goods and services supplied in or in relation to the execution of the works contract, whether or not supplied under the same contract or any other contract, after deducting-
(a) the amount charged for such goods or services, if any; and
(b) the value added tax or sales tax, if any, levied thereon.
(3) “Fair Market Value” –
the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles.
1.1 Under works contracts, sometimes as per terms of contract, a service receiver may supply materials such as cement or steel free of cost or at reduced cost and contractor uses such materials for the execution of such works contract.
1.2 Now the question is whether the contractor is liable to pay service tax on value of material supplied by the service receiver if he chooses the composition scheme for payment of service tax on such contracts.
Answer to this question is provided in the definition of “total amount” provided under Rule 2A(d) of Valuation Rules. Rule 2A(d) defines “total amount” as under:
“total amount” means –
the sum total of the gross amount charged for the works contract and the fair market value of all goods and services supplied in or in relation to the execution of the works contract, whether or not supplied under the same contract or any other contract, after deducting-
(a) the amount charged for such goods or services, if any; and
(b) the value added tax or sales tax, if any, levied thereon.
The underlined portion of the definition makes it clear that the contractor has to include the fair market value of free issue of materials in the composition scheme while calculating service tax under works contract.
1.3 Nature & Quantum of Free Issue of Materials
Generally, the works contracts clearly specify nature and quantum of free issue of materials, their use, obligations and responsibilities. An emphasis should be supplied on words “supplied under the contract or any other contract” provided in the definition of “total amount”. Hence, there is no stipulation that free issue materials should have been disclosed in the same contract. Even if they are agreed upon under separate contract, the service tax is payable on such free issue, if the same is used against execution of such works contract.
This aspect was also quite clear under old regime of service tax where the Notification No. 23/2009 dated 07-07-2009 included the following Explanation in works contract service valuation rules:
“the value of all goods used in or in relation to the execution of the works contract, whether supplied under any other contract for a consideration or otherwise”
1.4 Requirement of Contract for Free Issue of Materials
The intention of law is to cover all the supplies made by service receiver in valuation under composition scheme whether it is free or chargeable from service receiver. The reason behind this is that the percentage scheme rate is quite lower compare to normal service tax rate i.e. 12.36%.
To add conviction to above concept, it should be noted that even an oral agreement is a contract as per Indian Contracts Act, 1872. In fact, the performance of supply of free material itself becomes a free consent between both the parties and deemed contract can be implied. Hence, the value of free issue of material shall be included even if there is no such written contract.
1.5 Partial Use of Free Issue of Materials
Sometimes, it may happen that entire material supplied by the service receiver is not used by the contractors and only certain percentage of material out of total free issue of materials is consumed.
In such a situation due to the very nature of indirect taxation, only the consumed portion of free issue of material shall be liable for service tax. However, the contractor has to keep records of material used for execution of such works contract.
1.6 Reverse Charge Mechanism & Free Issue of Materials
As already provided, under works contracts 50% of service tax may be payable by service receiver, if all other prescribed conditions are satisfied.
In a case, if the Company (service receiver) provides free issue of material to such service providers then service tax shall be paid by such Company on 50% of total amount including the value of free issue of material provided.
Education Guide provides the following clarification on this aspect:
“10.1.6 How is the service recipient required to calculate his tax liability under partial reverse charge mechanism? How will the service recipient know which abatement or valuation option has been exercised by the service provider?
The service recipient would need to discharge liability only on the payments made by him. Thus, the assessable value would be calculated on such payments done (Free of Cost material supplied and out of pocket expenses reimbursed or incurred on behalf of the service provider need to be included in the assessable value in terms of Valuation Rules). The invoice raised by the service provider would normally indicate the abatement taken or method of valuation used for arriving at the taxable value. However since the liability of the service provider and service recipient are different and independent of each other, the service recipient can independently avail or forgo an abatement or choose a valuation option depending upon the ease, data available and economics.”
A Ltd. has entered into a contract for construction of a building with C Contractions Ltd.. As per the agreement, the amount payable (excluding all taxes) by A to CCL is ` 2,95,00,000 in addition to the steel and cement to be supplied by XYZ for which it charged ` 5,00,000 from CCL. Fair market value of the steel and cement (excluding VAT) is ` 10,00,000/-. The total amount charged pertaining to the said works contract for the execution of original works’, shall be computed as under:
Note: When the service provider pays partially or fully for the materials supplied by the service receiver, gross amount charged would inevitably go higher by that much amount.
|S.N.||Particulars||Amount (Rs. )|
|1.||Gross amount received excluding taxes||2,95,00,000|
|2.||FMV of steel and cement supplied by XYZ excluding taxes||10,00,000|
|3.||Amount charged by service receiver for steel and cement||5,00,000|
|4||Total amount charged (1+2-3)||3,00,00,000|
|5.||Value of service portion (40% of 4, in case of original works)||80,00,000|
Service Tax on Cancelled Contracts
1.1 According to Section 66B of the Act, service tax would be payable on services ‘provided or agreed to be provided’ in the taxable territory. Accordingly, advances retained or forfeited by service provider in the event of cancellation of contract by the service receiver become taxable as these represent consideration for a service that was agreed to be provided.
1.2 Further, an amount received in settlement of dispute may also be taxable if the dispute itself pertains to consideration relating to service. For example, the amount may represent payments for an executed works contract in dispute then it would be a part of consideration for such works contract service.
1.1 Under negative list scenario, reverse charge mechanism has also been extended to works contract services. Reverse Charge means where service tax has to be paid by a person other than the service provider. 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.
1.2 Partial Reverse Charge Mechanism
The Para I(A)(v) read with serial number 9 of table mentioned at Para II of said Notification provides that in case of taxable services provided or agreed to be provided by way of service portion in execution of works contract by any individual, Hindu Undivided Family or partnership firm, whether registered or not, including association of persons, located in the taxable territory to a business entity registered as body corporate, located in the taxable territory, the percentage of service tax payable by service provider and service receiver would be as under:
|Sl. No.||Description of a service||Percentage of service tax payable by the person providing service||Percentage of service tax payable by the person receiving the service|
|9.||In respect of services provided or agreed to be provided in service portion in execution of works contract||50%||50%|
In other words, the service provider is liable only to the extent of 50% of total service tax liability to be deposited in the Government Treasury and balance 50% shall be deposited by the service receiver on reverse charge basis directly in the Government Treasury subject to certain conditions.
1.3 Conditions for Applicability of Partial Reverse Charge Mechanism
(a) The service receiver must be a business entity registered as body corporate;
(b) The service provider must be –
— an individual;
— proprietary firm;
— partnership firm (whether registered or not);
— limited liability partnership (as definition of partnership firm includes limited liability partnership); or
(c) Both service provider and service receiver must be located in taxable territory.
1.4 The partial reverse charge mechanism is applicable only where the above conditions are fulfilled. Here, it is important to understand the scope of certain terms, such as (a) Business Entity (b) Body Corporate (c) Taxable Territory. The scope of such terms are elaborated below:
(a) Business Entity
Clause (17) of Section 65B of the Act provides interpretation of term “Business entity” and accordingly, it means any person ordinarily carrying out any activity relating to industry, commerce or any other business.
The definition of ‘business entity’ has very wide scope to include all type of persons such as a corporate, firm, limited liability partnership, association and even an individual subject to a condition that such person must carry out any activity relating to industry, commerce or any other business.
Thus, a charitable organization not carrying any business or profession, even if it is a body corporate would not be liable under reverse chare mechanism as it is not a ‘business entity’
b) Body Corporate
According to Service Tax Rules, 1994, “body corporate” has the meaning assigned to it in clause (7) of section 2 of the Companies Act, 1956.
Clause (7) of section 2 of the Companies Act, 1956 provides an inclusive definition of the term ‘body corporate’. It provides that “body corporate” or “corporation” includes a company incorporated outside India but does not include –
(a) a corporation sole ;
(b) a co-operative society registered under any law relating to co-operative societies ; and
(c) any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification in the Official Gazette, specify in this behalf.
A reference can also be taken from the definition provided under New Companies Act, 2013. Clause (11) of Section 2 of the Companies Act, 2013 which provides that “body corporate” or “corporation” includes a company incorporated outside India, but does not include—
(i) a 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.
The basic point of difference between these two definitions is that under New Companies Act, 2013, ‘a corporate sole’ is now not excluded from the definition and accordingly, under new law, it is a ‘body corporate’.
Further, the definition of ‘Partnership Firm’ as given in Service Tax Rules, 1994 also includes Limited Liability Partnership in its ambit.
The reverse charge mechanism in relation to works contract services, are summarized hereunder:
|If Service Provider is a||If ServiceReceiver is a||Service tax is payable by|
|Individual, Proprietary Firm, Partnership Firm including LLP||Body Corporate||50%||50%|
|Other than Body Corporate||100%||0%|
|Government orLocal Authority||Any Person||0%||100%|
|Body Corporate||Any Person||100%||0%|
|If Service Provider is a||If ServiceReceiver is a||Service tax is payable by|
(c) Taxable Territory
The term “taxable territory” has been defined under Clause (52) of Section 65B of the Act to mean the territory to which the provisions of this Chapter apply.
Sub-section (1) of Section 64 of Chapter V of the Act provides that “this Chapter extends to the whole of India except the State of Jammu and Kashmir”.
The partial reverse charge mechanism provides that both service provider and service receiver must be located in taxable territory. Accordingly, where any person out of these two is located in non-taxable territory, the partial reverse charge mechanism would not come into play. In such a situation either reverse charge mechanism would not be applicable at all or applicable on 100% basis but not on partial reverse charge basis. Accordingly, the service provider shall pay service tax in full or service tax is not payable at all or service tax would be payable by service receiver on 100% reverse charge mechanism basis. The provisions can be understood through the following table:
|Service Provider other than a ‘body corpo-rate’, located in||Service receiver being a‘body corporate’ located in||Service tax payable by Service Receiver||Service tax payable by Service Provider|
|TaxableTerritory||Non- Taxable Territory||Where POP – Outside India||Not – Taxable||Not – Taxable|
|Where POP – Inside India||0%||100%|
|Non-TaxableTerritory||Non-Taxable Territory||Exempted as per Entry No.34 of Meg ExemptionNotification.|
1.5 Reverse Charge Mechanism – 100%
In case of service portion in execution of works contract, the 100% reverse charge mechanism would also be applicable in following situations:
(a) where service provider is located in non-taxable territory and place of provision is in taxable territory;
Reverse Charge Notification provides that in respect of any taxable services provided or agreed to be provided by any person who is located in a non-taxable territory and received by any person located in the taxable territory,
100% service tax would be payable by service receiver only. Accordingly, in case of works contract services, where the works contractor is located in non-taxable territory and service receiver is located in taxable territory, the service tax would be payable by service receiver only.
|Service Provider located at||Service Receiver located at||Reverse Charge Mechanism|
|Jaipur||USA||POP – Outside India||Not Taxable At All – AsExport of Service|
|POP – InsideIndia||Taxable but RCM NotApplicable|
|Jaipur||J&K||Taxable but RCM NotApplicable|
(b) where the service provider is the Government or Local Authority;
Where the works contract services are provided by the Government or Local Authority, such services are defined as ‘Support Services’ under Clause (49) of Section 65B of the Act. Further, as per Reverse Charge Notification, where the support services (other than renting of immovable property) are provided by the Government or Local Authority to any business entity, the service tax would be payable by service receiver only. In other words, 100% reverse charge mechanism is applicable.
|Service Provider||Service Receiver||Taxability|
|Government or LocalAuthority||Business Entity||100% tax payable by such Business Entity|
|Government or LocalAuthority||Non-Business Entity||Covered under NegativeList|
|Business Entity||Government or Local Authority (other than for business, commerce, industry or profession purposes)||Generally Exempted under Mega Exemption Notification – Entry No. -12|
1.6 Valuation method under reverse charge mechanism
For this purpose, an explanation has been inserted in notification which provides that in works contract services, where both service provider and service recipient are the persons liable to pay tax, the service recipient has the option of choosing the valuation method as per choice, independent of the valuation method adopted by the provider of service.
The invoice raised by the service provider would normally indicate the abatement taken or method of valuation used for arriving at the taxable value. However, since the liability of the service provider and service recipient are different and independent of each other, the service recipient can independently avail or forgo an abatement or choose a valuation option depending upon the ease, data availability and economics.
In most of the cases contractee would be depending upon the contractor’s running account bills or accounting maintained by contractor for determining the amount of material and service/labour element involved in the contract. However, there may be a practical difficulty in the application of said explanation i.e. where contractee, the service receiver, wants to pay service tax on actual value of services and the service provider/contractor chooses to pay under alternate method.
If the contractor is paying service tax under alternate method then he may not bother to find out the actual services/labour element in the works contract as he has to calculate service portion at a fixed percentage of total amount under alternate method. In such a case, if contractee wants to pay service tax on actual value of services it would be very difficult for him to find out the actual value of labour/service element involved in works contract in the absence of proper accounting by contractor.
Similarly small contractors who are covered under SSP exemption i.e having turnover less than 10 lakh may not be keeping regular books of accounts under any law i.e under Income Tax (due to being covered u/s 44AD) or VAT laws (due to opting composite scheme), in such cases, again it would be difficult for the service receiver to pay service tax under actual scheme, so the above Explanation would become redundant.
1.1 Generally, the provisions of CENVAT Credit are regulated through CENVAT Credit Rules, 2004. However, in relation to works contract services, the Valuation Rules itself contain special provisions in relation to CENVAT Credit under Works Contract Services.
1.2 Though the Credit Scheme provided under CENVAT Credit Rules allows credit of inputs used under works contract services, Explanation 2 to Rule 2A of said Valuation Rules denies availment of such credit.
1.3 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; or
(b) Laying of foundation or making of structures for support of capital goods, except for providing construction or works contract services.
In other words, as per abovementioned rules, credit would be available in the following cases:
(a) where the contract amounts to ‘works contract’ and contract is otherwise than for building or civil structure;
(b) where input/input services are used for providing works contract services or construction services.
In short, as per CENVAT Credit Rules, a works contract services provider would be eligible for credit of duty paid on inputs and service tax paid on input services.
1.4 However, as per Explanation 2 to Rule 2A of said Valuation Rules, the provider of taxable service i.e. the works contract service shall not take CENVAT credit of duties or cess paid on any inputs, used in or in relation to the said works contract, under the provisions of CENVAT Credit Rules, 2004.
1.5 In other words, CENVAT Credit of excise duty paid on inputs used in or in relation to said works contract would not be available. However, the above explanation provides a restriction for availing credit of duty or cess paid on inputs and not for duty or cess paid on capital goods and service tax paid on input services. Therefore, CENVAT Credit shall be available in respect of excise duty paid on capital goods and service tax paid on input services used in or in relation to said works contract. E.g. Architect Services, Consultancy Services, PMC Services, Advisory Services, Sub-Contract Services, etc.
1.6 According to sub-rule (7) of Rule 4 of CENVAT Rules, the CENVAT credit in respect of input service shall be allowed, on or after the day on which the invoice, bill or, as the case may be, challan referred to in rule 9 of the said rules, is received.
1.7 Credit in case of 100% Reverse Charge
First proviso to Rule 4(7) provides that in case of an input service where the whole of the service tax is paid on reverse charge by the recipient of the service (i.e. u/s 68(2) of Finance Act, 1994), the CENVAT credit in respect of such input service shall be allowed after the service tax paid. He can take CENVAT credit whether or not he makes payment of value of input service to the service provider. [First Proviso to Rule 4(7) of CENVAT Credit Rules, 2004 inserted through Notification No. 21/2014 Dated 11.07.2014 w.e.f. 01.09.2014]
However, the credit should be taken within six months from date of issue of any of the documents specified in sub-rule (1) of rule 9 i.e. within six months from the date of payment/GAR-7 Challan. [Sixth Proviso to Rule 4(7) of CENVAT Credit Rules, `inserted w.e.f. 1-9-2014]
Before amendment where the whole of the service tax is paid on reverse charge basis by the recipient of service, credit in respect of such input service was allowed on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9. In other words, now the condition of payment of input service to service provider has been done away with.
1.8 Credit in case of Partial Reverse Charge
Second proviso to Rule 4(7) provides that in case of partial reverse charge mechanism i.e. where the service recipient is liable to pay a part of service tax and the service provider is liable to pay the remaining part, the CENVAT credit in respect of such input service shall be allowed on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9.
In other words, the credit of tax paid by the service recipient under partial reverse charge scheme would be available only after making payment of value of input service to the service provider and payment of service tax to the Central Government. The said credit would be available on the basis of the tax payment challan.
Really, this proviso applies only to the portion of service tax payable by the service receiver under reverse charge scheme. In respect of portion of service tax charged in the invoice by the service provider, the credit would be available immediately on receipt of invoice, bill or as the case may be, challan referred to in rule 9. It is also clear from the third proviso to Rule 4(7) of Cenvat Credit Rules, 2004.
Third proviso to Rule 4(7) provides that in case the payment of the value of input service and the service tax paid or payable as indicated in the invoice, bill or, as the case may be, challan referred to in rule 9, except in respect of input service where the whole of the service tax is liable to be paid by the recipient of service, is not made within three months of the date of the invoice, bill or, as the case may be, challan, the manufacturer or the service provider who has taken credit on such input service, shall pay an amount equal to the CENVAT credit availed on such input service and in case the said payment is made, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these rules.
In other words, in case of partial reverse charge scheme, if payment is not made to service provider within three months, the Cenvat credit taken should be reversed. Later, when he makes payment of invoice value and service tax to service provider, he can take back the Cenvat credit, which he had reversed earlier.
Further, the sixth proviso to Rule 4(7) provides that the manufacturer or the provider of output service shall not take CENVAT credit after six months of the date of issue of any of the documents specified in sub-rule (1) of rule 9. In other words, in any case credit has to be taken within six months from the date of invoice, bill or as the case may be, challan. It is to be noted here that the condition of six month is applicable for taking of Cenvat Credit and not for its utilization.
1.9 Where the assessee is claiming exemption up to rupees ten lakhs as per Notification No. 33/2012 (supra), he is not eligible for CENVAT Credit. However, as and when, he pays service tax, he is eligible for CENVAT Credit for services or inputs or capital goods received on or after that day.
1.10 It would be worthwhile to mention here that the above scheme of CENVAT Credit would be applicable for both methods of valuation as prescribed under Rule 2A of Service Tax (Determination of Value) Rules, 2006.
1.11 It is a point to ponder that CENVAT Credit cannot be availed off while discharging service tax liability under reverse charge mechanism by the service receiver.
1.1 POT for Service Provider
Under the provisions of Rule 2(c) of Point of Taxation Rules, 2011, the Central Government has specified ‘service portion in execution of works contract’ to be a ‘continuous supply of service’ for the purpose of said rules. It reads as under:
“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 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;
In other words, works contract services will constitute “continuous supply of services” irrespective of the period for which they are provided or agreed to be provided.
Notification No. 4/2012 Dated 17.03.2012 has omitted the Rule 6 dealing with point of taxation relating to ‘continuous supply of services’ and inserted the following new proviso under clause (a) and (b) of Rule 3 of POT Rules and thereby, has made applicable the general provision of POT on ‘continuous supply of services’ also:
“Provided that for the purposes of clauses (a) and (b), —
(i) in case of continuous supply of service where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of service to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service.”
In other words, said Notification provides that the ‘point of taxation’ in case of continuous supply of service shall be determined in the same manner as provided for services other than continuous supply of services. However, for this purpose, where the provision of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of service to make any payment to service provider, the date of completion of each such event as specified in the contract shall be deemed to be the date of completion of provision of service.
The POT in case of ‘continuous supply of services’ would be determined as under:
|Situation||Point of Taxation|
|Event Completed & Invoice Issued within 30 days.Days||Date of Issue of Invoice|
|Event Completed but invoice not issued within 30days.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|
1.2 POT for Service Receiver
On or after 01.10.2014: As Amended by Notification No. 13/2014-ST Dated 11.07.2014
The Point of Taxation of service receiver (for liability under reverse charge mechanism) is governed by Rule – 7 of the POT rules. 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 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.
Up to 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.
1.1 Entry No. 29 (h) of Mega Exemption Notification No. 25/2012 Dated 20.06.2012 provides exemption to sub-contractor providing services by way of works contract to another contractor providing works contract services which are exempt.
1.2 A sub-contractor providing services by way of works contract to the main contractor, has been exempted from service tax under the mega exemption if the main contractor is engaged in providing exempt services of works contracts. It may be noted that the exemption is available to sub-contractors engaged in works contracts and not to other outsourced services such as architect or consultants.
1.3 As per Clause (1) of Section 66F of the Act, reference to a service by nature or description in the Act will not include reference to a service used for providing such service. Therefore, if any person is providing services, in respect of projects involving construction of roads, airports, railways, transport terminals, bridges, tunnels, dams etc., such as architect service, consulting engineer service, which are used by the contractor in relation to such construction, the benefit of the specified entries in the Mega-Exemption Notification would not be available to such persons unless the activities carried out by the sub-contractor independently and by itself fall in the ambit of the exemption.
1.4 It has to be appreciated that the wordings used in the exemption are ‘services by way of construction of roads etc’ and not ‘services in relation to construction of roads etc’. It is thus apparent that just because the main contractor is providing the service by way of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams etc., it would not automatically lead to the classification of services being provided by the sub- contractor to the contractor as an exempt service.
1.5 In other words, sub-contractor providing works contract services are not exempt where the principal contractor is providing taxable works contract services. Further, it must be noted that the services provided by an architect, consulting engineer, painter, electrician, erection, commissioning or installation services to the principal works contractor are not exempt as the exemption is available to sub-contractor engaged in works contract services and not to other outsourced services. In such case, the services rendered by such person would not be exempt from service tax even though such services are rendered in relation to exempt works contract service. In addition to this, ‘pure labour services provided by sub-contractor to contractor, are not qualified as ‘works contract services’ and hence become liable for service tax.
1.6 The above entry makes it clear that if the principal contractor is providing works contract services which are exempt from service tax and if some part of the contract is sub-contracted to any other person, then such sub-contractor is not liable for service tax. E.g. principal contractor gets a contract from Government for constructing road of 100 KM. and he sub-contracts the construction of 10 KM. of road then in such case, the sub-contractor would also be exempt from service tax under clause (h) above as he will be providing services of a works contract nature.
1.7 Further, it should also be noted that a sub-contractor (who provides works contract services to the main contractor providing works contract services which are exempt from tax) also sub-contracts such contract to another sub-contractor then also such sub-sub-contractor is also not liable to services as the terms which are used in entry 29(h) are “services by way of works contract to another contractor” and not the ““services by way of works contract to main/principal contractor”. Hence, works contract services provided by sub-sub-contractor to sub-contractor who provides exempted works contract services.
The determination of place of provision in respect of works contracts service depends upon the nature of property in respect of which it is entered into such as immovable property or movable property. The place of provision can be determined in the following manner:
1.1 Where Works Contracts is entered for Immovable Property
Where a works contract is entered in respect of an immovable property, the Rule – 5 of POPS comes into play. Rule – 5 of said rules reads as under:
“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 or campsite, 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 immovable property is located or intended to be located.”
Accordingly, in order to determine the place of provision for works contract services in relation to an immovable property, what is important is the location of immovable property and not the location of service provider (works contractor) or service receiver (works contractee or awarder).
1.2 Works Contracts is entered for Movable Property
Where a works contract is entered in respect of a movable property, the Rule – 4 of POPS comes into play. Rule – 4 of said rules reads as under:
“The place of provision of following shall be the location where services are actually performed, namely:-
(a) services provided in respect of goods that are required to be made physically available by the Service Receiver to Service Provider, or to a person acting on behalf of the provider of service, in order to provide the service:
(b) Accordingly, where works contract is entered in respect of any goods i.e. movable property, the place of provision would be the place where the services are actually performed. It means, where the goods is 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.
(Author is practicing chartered accountant in Gurgaon and having specialisation in Service Tax and Haryana VAT. He can be reached at email@example.com. Phone : 0124-4271552.)