1. Presented By J.K. MITTAL (Advocate) Chairman, Indirect Taxes Committee, PHDCCI Co-Chairman, National Council (Indirect Taxes), ASSOCHAM LL.B.,F.C.A., F.C.S. NEW DELHI Ph: 011- 22056635 Fax: 011- 22447420 Email: jkmittal@bol.net.in jkmittalservicetax@gmail.com Work Contract Services J.K.Mittal FCA, FCS,LLB 1J.K.Mittal FCA, FCS,LLB

2. Definition of “Service” J.K.Mittal FCA, FCS,LLB 2 “service” means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include— (a)an activity which constitutes merely,–– (i)a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii)such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or

3. Definition of “Service” (iii) a transaction in money or actionable claim; (b)a provision of service by an employee to the employer in the course of or in relation to his employment; (c)fees taken in any Court or tribunal established under any law for the time being in force. J.K.Mittal FCA, FCS,LLB3

4. Declared Service [Section 66E] “declared service” means any activity carried out by a person for another person for consideration and declared as such under section 66E The following shall constitute declared services, namely:– (h) service portion in the execution of a works contract; [Section 66E(h)] J.K.Mittal FCA, FCS,LLB 4

5. Work Contract Section 65B(54) “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; [Section 65B (54)]

6. Goods Section 65B(25) “goods” means every kind of movable property other than actionable claim and money; and includes securities, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; [Section 65B (25)] section 66E(b) -“the expression “construction” includes additions, alterations, replacements or remodeling of any existing civil structure” J.K.Mittal FCA, FCS,LLB 6

7. Service portion in execution of a works contract In the case of State of Andhra Pradesh v Larsen & Tourbo Ltd., 2008-TIOL-158-SC-VAT, the Supreme Court held that “12. A contract of work, i.e., "works contract" involves transfer of property and also element of service or work rendered. That is why it is called composite contract. Works contracts can be of two types only: (a) Works contract for constructions; and (b) Works contract in relation to any movable property like repairs to vehicles, printing contracts etc.” J.K.Mittal FCA, FCS,LLB 7

8. J.K.Mittal FCA, FCS,LLB 8 In the case of Sasken Communication Technologies Ltd. v Joint Commissioner of Commercial Taxes, Bangalore, 2011-TIOL-707-HC- KAR-ST, the High Court held that “33. In a works contract, splitting of service and supply of goods has been constitutionally permitted by introducing the concept of deemed sale. Therefore, the works contract in truth, represents two distinct and separate contracts which are discernable as such. Then the State would have the power to separate the agreement to sell from the agreement to render service, and impose a tax on sale. Therefore, the works contract is necessarily a composite contract, consisting of both an agreement to sell goods and an agreement to render service. No one can deny the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernable in the transaction. This does not however allow the State to entrench upon the union list and tax services by including the cost of such service in the value of the goods.” Works Contract – Court defined

9. , Valuation in works contract Services Rule 2A(i) of the Service Tax (Determination of Value) Rules, 2006, w.e.f. 01.07.2012 as amended by Notification No. 24/2012-ST, 6.6.2012 for determination of value of service referred to in clause (h) of section 66E of: value of service portion of works contract = gross value of works contract – value of property in goods transferred (a) gross amount charged for the works contract shall not include Value Added Tax (VAT) or sales tax, as the case may be, paid, if any, on transfer of property in goods involved in the execution of the said works contract; (b) value of works contract service shall include,- (i) labour charges for execution of the works; (ii) amount paid to a sub-contractor for labour and services; (iii) charges for planning, designing and architect’s fee (iv) charges for obtaining on hire or otherwise, machinery and tools used for the execution of the works contract; (v) cost of consumables such as water, electricity, fuel, used in the execution of the works contract; Contd… J.K.Mittal FCA, FCS,LLB 9

10. Valuation under Works contract Service (vi) cost of establishment of the contractor relatable to supply of labour and services; (vii) other similar expenses relatable to supply of labour and services; and (viii)profit earned by the service provider relatable to supply of labour and services; ( c) Where value added tax 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. Contd.. J.K.Mittal FCA, FCS,LLB 10

11. Valuation under Works contract Service Where the value has not been determined under clause (i) of Rule 2A, 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:— J.K.Mittal FCA, FCS,LLB 11 Works contracts entered into for execution of original works Works contracts entered into for maintenance or repair or reconditioning or restoration or servicing of any goods Works contracts entered into for other works contract 40%70%60% % of the total amount charged for the works contract

12. Table at a glance for service tax payable on different types of works contract under Rule 2A(ii) J.K.Mittal FCA, FCS,LLB 12 Sl. No. Description of service Value in %age of the total amount Charged Net service tax liability* in %age 1.Original works40%4.944% 2.Maintenance and repair of goods70%8.652% 3.Other works contract including completion and finishing service 60%7.416%

13. Explanation 1.—For the purposes of this rule,— (a)“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; J.K.Mittal FCA, FCS,LLB13

14. “total amount” Whereas the 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- (i)the amount charged for such goods or services, if any; and (ii)the value added tax or sales tax, if any, levied thereon [rule 2A(i)(d)] However, the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles. [proviso to Explanation 1 to Rule 2A] J.K.Mittal FCA, FCS,LLB 14

15. No credit of excise duty on goods/ inputs For the removal of doubts, it is clarified that the provider of taxable 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.” [Explanation 2 to Rule 2A]. Therefore, a service provider in this case shall be eligible to take the credit of service tax paid on input service as well as duty paid on capital goods. J.K.Mittal FCA, FCS,LLB 15

16. The manner of arriving at the ‘total amount charged’ is explained by the Education Guide dated 20.06.2012 with the help of the following example pertaining to works contract for execution of ‘original works’ J.K.Mittal FCA, FCS,LLB 16 S. No.Particulars Amount (in Rs.) 1.Gross amount received excluding taxes9,50,000 2. Fair market value of goods supplied by the service receiver excluding taxes 1,00,000 3.Amount charged by service receiver for 250,00,00 4.Total amount charged (1+2-3)10,00,000 5.Value of service portion(40% of 4 in case of original works)40,000

17. Reverse Charge Provisions in relation to Work Contract Service The extent of service tax payable thereon by the person who provides the service and the person who receives the service for the taxable service in respect of services provided or agreed to be provided in service portion in execution of works contract shall be as follows: Tax payable by the Service Provider- 50% Tax payable by the Service Receiver- 50%

18. As per Explanation-II to Notification 30/2012-ST, dated 20.06.2012, “In works contract services, where both service provider and service recipient is the persons liable to pay tax, the service recipient has the option of choosing the valuation method as per choice, independent of valuation method adopted by the provider of service.” J.K.Mittal FCA, FCS,LLB 18

19. Whether works contract service provided by the sub- contractor to another contractor providing works contract services are exempt from service tax? Yes. Under serial No. 29 sub clause (h) of the mega Notification, Services by the following person is exempt from service tax. (h) sub-contractor providing services by way of works contract to another contractor providing works contract services which are exempt; [Notification No. 25/2012-ST, dated 20.06.2012] J.K.Mittal FCA, FCS,LLB 19

20. Calculation of Service Tax Liability on Advance under rule 2A clause (i) of Tax (Determination of Value) Second Amendment Rules, 2012. A person received a contract for execution of works contract and he has to raise the Mobilization advance bill at some % of the total contract value for mobilize the site as per the terms of the contact. In the said advance bill component of material part can’t be ascertained for calculating the service tax as per Rule 2A clause (1) of aforesaid rules whereas in the RA work bill we can easily calculate the portion of Material consumed in the said respective bill. J.K.Mittal FCA, FCS,LLB20

21. J.K.Mittal FCA, FCS,LLB21 Now the question arises that how he can make the advance billing for claiming the service tax on the same & discharge the service tax liability on such advance under rule 2A clause (i) of Tax (Determination of Value) Second Amendment Rules, 2012 i.e. ) value of service portion in the execution of work contract is to be calculated after deduction of Material value.

22. Certain Works Contracts exempted from service tax [Mega Exemption Notification No. 25/2012-ST, dated 20.06.2012] Such contracts where there is transfer property in goods and satisfy above requirement of exemption Notification, then service portion in execution of such works contract are exempt from service tax. J.K.Mittal FCA, FCS,LLB 22

23. Under the serial No. 12 of the Mega exemption Notification 25/2012-ST Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of following are exempt from service tax— (a)a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; J.K.Mittal FCA, FCS,LLB 23

24. Under the serial No. 12 of the Mega exemption Notification 25/2012-ST (b)a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c)a structure meant predominantly for use as (i) an educational,(ii) a clinical, or (iii) an art or cultural establishment; (d)canal, dam or other irrigation works; J.K.Mittal FCA, FCS,LLB 24

25. Under the serial No. 12 of the Mega exemption Notification 25/2012-ST (e)pipeline, conduit or plant for (i)water supply (ii)water treatment, or (iii)sewerage treatment or disposal. (f)a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of section 65B of the said Act; J.K.Mittal FCA, FCS,LLB 25

26. Under the serial No. 12 of the Mega exemption Notification 25/2012-ST “residential complex” means any complex comprising of a building or buildings, having more than one single residential unit; [Clause 2(zc) of Notification.] “single residential unit” means a self-contained residential unit which is designed for use, wholly or principally, for residential purposes for one family; “original works” means has the meaning assigned to it in Rule 2A of the Service Tax (Determination of Value) Rules, 2006; [Clause 2(y) of Notification.] J.K.Mittal FCA, FCS,LLB 26

27. Under the serial No. 12 of the Mega exemption Notification 25/2012-ST The exemption is available for a civil structure or any other original works meant “predominantly” for use other than for commerce, industry, or any other business or profession. The significance of the word “predominantly” is that benefit of exemption will not be denied if the building is also incidentally used for some other purposes. Contractor providing service of construction of hospitals and educational institutes for the government, a local authority or a governmental authority, are not required to pay service tax. However, such exemption is not available for providing constructing for others person such as trust, society or any other non-profit making organization. J.K.Mittal FCA, FCS,LLB 27

28. Under the serial No. 13 of the Mega exemption Notification 25/2012-ST Services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of following works contracts are exempt,- (a)a road, bridge, tunnel, or terminal for road transportation for use by general public; (b)a civil structure or any other original works pertaining to a scheme under Jawaharlal Nehru National Urban Renewal Mission or Rajiv AwaasYojana; J.K.Mittal FCA, FCS,LLB 28

29. Under the serial No. 13 of the Mega exemption Notification 25/2012-ST (c)a building owned by an entity registered under section 12 AA of the Income tax Act, 1961 and meant predominantly for religious use by general public; (d)a pollution control or effluent treatment plant, except located as a part of a factory; or (e) a structure meant for funeral, burial or cremation of deceased; J.K.Mittal FCA, FCS,LLB 29

30. Under the serial No. 13 of the Mega exemption Notification 25/2012-ST Construction of roads for use by general public is exempt from service tax. Construction of roads which are not for general public use e.g. construction of roads in a factory, residential complex would be taxable. Service tax is exempt on construction of a building owned by an entity registered under section 12 AA of the Income tax Act, 1961 and meant predominantly for religious use by general public. Such exemption is also available for the repair, maintenance, renovation, or alteration of such building. The word “general public” means the body of people at large sufficiently defined by some common quality of public or impersonal nature; [Clause 2(q) of Notification.] J.K.Mittal FCA, FCS,LLB 30

31. Under the serial No. 14 of the Mega exemption Notification 25/2012-ST Services by way of construction, erection, commissioning, or installation of original works pertaining to following works contract are exempt from service tax. (a) an airport, port or railways, including monorail or metro; (b) a single residential unit otherwise than as a part of a residential complex; “single residential unit” means a self-contained residential unit which is designed for use, wholly or principally, for residential purposes for one family; “residential complex” means any complex comprising of a building or buildings, having more than one single residential unit; [Clause 2(zc) of Notification.] J.K.Mittal FCA, FCS,LLB 31

32. Under the serial No. 14 of the Mega exemption Notification 25/2012-ST (c) low-cost houses up to a carpet area of 60 square metres per house in a housing project approved by competent authority empowered under the ‘Scheme of Affordable Housing in Partnership’ framed by the Ministry of Housing and Urban Poverty Alleviation, Government of India; (d) post-harvest storage infrastructure for agricultural produce including a cold storages for such purposes; or (e) mechanised food grain handling system, machinery or equipment for units processing agricultural produce as food stuff excluding alcoholic beverages; J.K.Mittal FCA, FCS,LLB 32

33. Bundled services Section 66F Principles of interpretation of specified descriptions of services or bundled services.— (1) Unless otherwise specified, reference to a service (herein referred to as main service) shall not include reference to a service which is used for providing main service. (2) Where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. J.K.Mittal FCA, FCS,LLB 33

34. Bundled services Section 66F (3) Subject to the provisions of sub-section (2), the taxability of a bundled service shall be determined in the following manner, namely:–– (a)if various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character; (b)if various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service tax. J.K.Mittal FCA, FCS,LLB 34

35. Bundled services Section 66F Explanation.—For the purposes of sub-section (3), the expression “bundled service” means a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services. J.K.Mittal FCA, FCS,LLB 35

36. What is ‘governmental authority’? The Clause 2(s) of Mega Notification No. 25/2012 defines it as: “governmental authority’’ means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W of the Constitution. J.K.Mittal FCA, FCS,LLB 36

37. What is ‘governmental authority’? Thus the following conditions should be satisfied for a board, body or an authority to be eligible for exemptions as a governmental authority: (1)set up by an Act of the Parliament or a State Legislature; (2)established with 90% or more participation by way of equity or control by Government; and (3)Carries out any of the functions entrusted to a municipality under Article 243W of the Constitution. J.K.Mittal FCA, FCS,LLB 37

38. What is ‘government? The phrase ‘Government’ has not been defined in the Act. As per clause (23) of section 3 of the General Clauses Act, 1897 ‘Government’ includes both Central Government and any State Government. As per clause (8) of Section 3 of the said Act ‘Central Government’, in relation to anything done or to be done after the commencement of the Constitution, mean the President. J.K.Mittal FCA, FCS,LLB 38

39. What is ‘Central government? As per Article 53 of the Constitution the executive power of the Union shall be vested in the President and shall be exercised by him either directly or indirectly through officers subordinate to him in accordance with the Constitution. Further, in terms of Article 77 of the Constitution all executive actions of the Government of India shall be expressed to be taken in the name of the President. Therefore, the Central Government means the President and the officers subordinate to him while exercising the executive powers of the Union vested in the President and in the name of the President. J.K.Mittal FCA, FCS,LLB 39

40. What is ‘state government? Similarly as per clause (60) of Section 3 of the General Clauses Act, 1897 ‘State Government’, as respects anything done after the commencement of the Constitution, shall have been, in a State the Governor, and in Union Territory the Central Government. Further as per Article 154 of the Constitution of India the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or indirectly through officers subordinate to him in accordance with the Constitution. J.K.Mittal FCA, FCS,LLB 40

41. What is ‘state government? Further, as per Article 166 of the Constitution of India all executive actions of the Government of State shall be expressed to be taken in the name of Governor. Therefore, State Government means the Governor or the officers subordinate to him who exercise the executive power of the state vested in the Governor and in the name of the Governor. ‘Government’ would include various departments and offices of the Central or State Government or the U.T. Administrations which carry out their functions in the name and by order of the President of India or the Governor of a State J.K.Mittal FCA, FCS,LLB 41

42. What is ‘Local Authority’? The word ‘local authority’ has been defined in Section 65B (31) of the Act, which means— (a) a Panchayat as referred to in clause (d) of article 243 of the Constitution; (b) a Municipality as referred to in clause (e) of Article 243P of the Constitution; (c) a Municipal Committee and a District Board, legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund; (d) a Cantonment Board as defined in section 3 of the Cantonments Act, 2006. The Section 3 of the Cantonments Acts, 2006 provides J.K.Mittal FCA, FCS,LLB 42

43. What is ‘Local Authority’? (e) a regional council or a district council constituted under the Sixth Schedule to the Constitution; Sixth schedule of Constitution of India provides Provisions as to the Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. (f) a development board constituted under Article 371 of the Constitution; or Article 371 deals with Special provision with respect to the States of Maharashtra and Gujarat. (g) a regional council constituted under Article 371A of the Constitution; J.K.Mittal FCA, FCS,LLB 43

44. 44 ………Thank you……….. 44J.K.Mittal FCA, FCS,LLB