Works Contract Service

September 6th, 2012

1 Background

¨     When you purchase flat, you do not say you have purchased cement, steel, building material or bathroom fittings

¨     When you take Xerox copy, you do not treat is as purchase of paper

¨     If fabric is given for dying, you do not treat it as purchase of dyes.

¨     If car is given for painting, you do not say you have purchased paint used for painting the car.

¨     If contract for comprehensive Annual Maintenance Contract (AMC) is given, it contains both material plus service, though value of material in AMC is not ascertainable at the time of execution of AMC agreement.

¨     These are all examples of works contract. Basically it is a composite contract of goods plus services, where your intention is not to purchase goods as ‘goods’ (chattel as chattel).

2 Indivisible Contract is not sale of goods contracts

¨     In State of Madras v. Gannon Dunkerley (1958) 9 STC 353 (SC)  = 1959 SCR 379 = AIR 1958 SC 560, it was held that tax cannot be levied on works contract, as there is no sale of ‘goods’ as ‘goods’

¨     46th Amendment to Constitution in 1982 to get over this decision.

¨     Article 366(29A) of Constitution of India inserted in 1982, which defines deemed sales of goods as follows – ‘A tax on sale or purchase of goods includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract’.

3 Service portion of Works Contract

¨     Service portion in the execution of a Works Contract is ‘declared service’ [section 66E(h)]

¨     Thus, an indivisible or composite contract bifurcated into sale of goods (for Vat/sales tax) and provision of service (for service tax) by deeming provision in Constitution and Service Tax Law

4 Works Contract [section 65B(54)

¨     Works Contract has been defined in section 65B(54) of Finance Act, 1994, for purpose of service tax, as follows –

¨     “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, 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

¨     Definition of works contract different from definition under CST Act or State Vat Laws – but broadly coverage is same

¨     The contract should be leviable to tax as sale of goods [Thus, actual levy or payment of tax not required]

¨     Both movable and immovable property covered

5 Coverage under works contract

¨     Construction of building and civil structure

¨     Laying of pipelines

¨     Erection and Commissioning

¨     Composite Annual Maintenance Contracts (AMC) covering both supply of spares and provision of services

¨     Job work where some material used by job worker

¨     Painting of car, dyeing of fabric

¨     Printing on paper supplied by customer (Here Vat is payable on ink but no service tax as printing job work has been exempted from service tax).

6 Exemption to sub-contractor of works contract

¨     Sub-contractor under works contract providing service to main contractor (who is also under works contract), when service of main contractor is exempt

¨     If sub-contractor himself is undertaking work which is exempt from service tax (e.g. sub-contractor undertaking work of construction of public road itself).

7 Valuation under works contract

¨     Finding value of service in case of composite contract is very difficult. In case of service tax on works contract, service tax can be paid either on basis of actual value of service or on ad hoc basis under composition scheme.

¨     Calculate value of service on costing plus profit basis and pay service tax on such value.

¨     Deduct value of material on which State Vat is paid, if State Vat is paid on actual value of material (and not under composition scheme) and pay service tax on balance amount

¨     Composition Scheme if aforesaid methods not possible.

8 Composition Schemes under Works Contract

¨     Original Works – 40% of ‘total amount’

¨     Maintenance or repair or reconditioning or restoration or servicing of any goods (like comprehensive AMC, job work including material – 70% of total amount

¨     Other works contracts (in relation to immovable property other than original works) – 60% of total amount

¨     If construction contract includes value of land (It is included in Abatement scheme though actually it is a composition scheme) – 25%

9 Original Works

¨     Original work 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.

10 Other Works Contracts (60%)

¨     Other works contracts (other than covered under 40% or 70%) including maintenance, repair, completion and finishing services such as glazing, plastering, floor and wall tiling, plastering, floor and wall tiling, installation of electrical fittings of an immovable property

¨     Finishing and repair services of immovable property covered

11 Risk under Composition Scheme

¨     Fair Value of material and services supplied by contractee is required to be added in ‘total amount’ and then calculate 25%, 40%, 60% or 70%

¨     Even value of machinery/equipment may have to be added if it is contract for erection and commissioning?

¨     Scheme is risky in such cases.

12 Fair market value of FOC material and free services

¨     Customer may raise invoice for some amount for material supplied instead of giving it free (to avoid addition of FOC material)

¨     If customer charges some amount for material supplied (say 60,000) and fair value of material supplied is ` 1,00,000, then the difference of ` 40,000 will be includible.

¨     If some free services like electricity, canteen, water etc. are provided, its cost will also have to be added.

13 Illustration

¨     Illustration – Bill amount of the contractor of works contract was ` 10,00,000. Further, goods (cement and steel) of ` 2,00,000 were supplied by customer. The customer did not give the material free. He charged ` 60,000 for that. These were used while providing the works contract service. (assume that the quotation of contractor of works contract did not include the amount of ` 60,000).

¨     Answer – Gross amount charged will be ` 12 lakhs and service tax @ 4.944% of such amount will be payable on ` 12 lakhs. Cenvat credit of tax paid on  input services and capital goods will be available, but not of duty paid on inputs.

14 Each contract can be valued separately

¨     Each works contract can be valued separately

¨     Even service provider and service receiver can value the same contract on separate basis – Para 10.1-8 of CBE&C’s Taxation of Services : An Education Guide’ published on 20-6-2012 [Theoretically possible, practically difficult]

15 Reverse charge in works contract service

¨     50% tax by service receiver if service provider of works contract service is individual, HUF, proprietary or partnership firm or AOP

¨     AND service receiver is company or business entity incorporated as body corporate. 50% by service provider

¨     Construction, Job work (with material), AMC covered

¨      “Business entity” means any person ordinarily carrying out any activity relating to industry, commerce or any other business or profession.

¨     Body Corporate means company, Cooperative Society, LLP

¨     If the service receiver is a charity organisation, Government, trust or firm or individual, provision not applicable.

¨     The service receiver and service provider can value the same contract on different basis. This is specifically permitted in Para 10.1-8 of CBE&C’s Taxation of Services : An Education Guide’ published on 20-6-2012.

 

 

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