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Construction services : Where applicant supplies works contract services involving supply of goods and services to Chhattisgarh State Power Distribution Company Ltd. (CSPDCL) and nature of services being predominantly for commercial use by CSPDCL, in light of Notification No. 11/2017-State Tax (Rate), dated 28-6-2017 read with Notification No. 24/2017-State Tax (Rate), dated 28-6-2017, said services attract CGST and Chhattisgarh GST each at rate of 9 per cent respectively.

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2018-VIL-180-MAD

THE STATE OF TAMIL NADU Vs RAJ MOSAIC TILE WORKS

Tamil Nadu General Sales Tax Act, 1959 - appellants is a works contractor who had undertaken the working of laying and polishing of Mosaic tiles – revenue view that entire amount received by the assessees on the execution of works contract on mosaic is taxable - Revenue aggrieved by Tribunal holding that the sand used for the execution of works contract alone would be taxable and the value of other items is exempt under Section 3B(2)(c) of the Act - Whether the assessee is entitled to the claim of exemption under Section 3(B) 2(b) and also other deductions as per account

HELD – the Appellate Authority and Tribunal are the final fact finding authorities and when the books of accounts were produced, the Appellate Authority has analysed the same and found that the dealers were having separate accounts for the materials that had been purchased and utilised in the course of works contract and that they have also maintained separate figures for various charges that had been incurred during the course of works contract - the entire raw materials utilized for the execution of works contract have been purchased from within state and suffered tax and the items used for the execution of works contract were tax suffered goods except sand.

Therefore, the sand used for the execution of works contract alone is taxable and the value of other items used should be given exemption under Section 3(B)(2)(c) of the TNGST Act, 1959 – the impugned order is sustained and Revenue petitions are dismissed

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  • HC upholds Tribunal’s adoption of 10% gross profit for working out deemed sales value of goods transferred during works contract execution, under Tamil Nadu VAT Act, 2006 (TNVAT Act);
  • Dismisses assessee's contention that Tribunal failed to consider assessee’s books of accounts and that adoption of thumb rule of 10% Gross Profit disregarding the actual gross profit as certified by CA was based merely on surmises and approximation;
  • Finds that Tribunal, on noting that assessee did not maintain proper accounts and failed to produce related records, affirmed adoption of conventional method of 10% notional gross profit on purchase effected for arriving at deemed sales turnover;
  • Also rejects assessee’s plea of natural justice principles violation, as well as its reliance on Income Tax ruling of Kerala HC in Joseph Thomas & Bros’ wherein it was held except assessment u/s 144, opportunity of being heard, shall be given in respect of any material gathered basis any enquiry;
  • Holds that, adoption of 10% gross profit is in vogue ever since introduction of Section 3B of Tamil Nadu General Sales Tax Act, 1959 and continues even for liabilities relating to Section 5 of TNVAT Act : Madras HC
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2017-VIL-638-BOM

M/s BHARAT HEAVY ELECTRICALS LTD Vs THE STATE OF MAHARASHTRA

Bombay Sales Tax Act, 1959 - Transaction of sale or Work contract - Contract for designing, engineering, supplying, erection, installation and Commissioning of the Trombay-V Expansion Project – contract involving manufacture, inspection, shipping, clearance and dispatch - Assessee in appeal against Tribunal order holding that supplies of material were sales, liable to tax under the BST Act, 1959

HELD – it is seen that the foundation is to prepare by FPDIL and not the applicant. The applicant is to supply equipment and erect it on the site. Work of erection is not separately valued but is tied with transportation costs and insurance. In any event this is only a fraction of total cost. In the circumstances, it is difficult to accept the contention of the applicant that the contract is one of work.

In value terms, the amounts spent for erection is minuscule. This notwithstanding, the transaction seems to be for supply of the compressors at a site prepared by FPDIL in terms of foundation and merely fixing four compressors. The schedule also provides for materials and workmanship guarantees which are restricted to specification laid down in the contract and free from defects in design and material in relation to equipment and not in relation to the work of installation.

Repair and replacement of the equipment is also contemplated at site. There is nothing to indicate that the guarantees also include the entire erection work - considering the factual matrix and the law and after applying the tests in Kone Elevator case, it is evident that in the facts of the present case the contract was clearly one for supply and erection of equipment, supply of equipment being dominant purpose

FPDIL was required to carry out all preparation work, provide foundation, provide all civil works required, the equipment was merely supplied and installed - The transaction entered by the applicant with RCF is one for sale and not for works contract – answered in favour of the revenue and against the assessee

 

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GOVERNMENT OF ASSAM

OFFICE OF THE COMMISSIONER OF TAXES

 

Dispur: 24.08.2017

 

CIRCULAR No. 3/2017-GST

No. CT/GST-10/2017/194.—Everyone is aware that Goods and Services Tax (GST) has been introduced in Assam with rest of the country with effect from1st July, 2017replacingAssam Value Added Tax Act, 2003 which was in forceupto30th June,2017. GST has two components: State GST levied and collected by the State and CentralGST levied and collected by the centre and these two components of GST i.e. SGST and CGST would be applicable on all intra-State (within the State) supplies of goods and services on the same taxable value of such supply.However, the inter-Statesupplies of goods and /or services would attract Integrated Goods and Services Tax (IGST) levied and collected by the Centre.

Under the old VAT law, the drawing & Disbursing Officers (DDOs) of various Central and state government departments and establishments were required to deduct tax at source in respect of conventional sale/supply of goods, execution of works contract and lease transactions.

Post introduction of GST, umpteen numbers of queries have been received from Drawing & Disbursing Officers (DDOs) of various Central and State Government departments and establishments regarding the applicability of the provision of deduction of tax at source (TDS)in respect of pre-existing contracts/supplies as well as contracts/suppliers executed after introduction of GST.

 

The matter is examined at length. Since provision of TDSapplies to execution, of works contract as well as to supply of goods and it is deemed appropriate to issue following clarifications broadly under two heads:

(A)  WORKS CONTRACT:

A "works contract" involves the transfer of property and also an element of service or work rendered.That is why it is called composite contract.

It is pertinent to make a brief reference to the legal position under the old AssamVAT Act vis-à-vis GST Act.

Provisions under the old Assam VAT Act:

As per provision of section 18 of the Assam VAT Act, the time of sale of goods was the earliest of the following,-

(a)  date of issue of the tax invoice;

(b)  date of receipt of payment, in full or in part;

(c)  transfer of title or possession of the goods or incorporation of the goods in the course of execution of any works contract.

It is settled position of law that "Taxable event is the transfers of property in goods involved in the execution of works contract and the said transfer of property in such goods takes place when the goods are incorporated in the works."

There were two methods of taxation of works contract under VAT.

A contractor (having TIN) could pay 15% tax on the taxable turnover of goods, that is, after excluding labour component and other prescribed deductions from gross turnover which is the composite price consideration for both material and labour component.

Alternatively, a contractor could opt for composition scheme (by registering under GRN) and pay 5% lump sum tax on the entire/gross value of works contract without any deduction for labour and other charges.

Section 47(1) of the Assam VAT Act provides for deduction of tax at source by every person under the control of Government while making any payment for execution of a work contract, as per the rates specified in the fifth Schedule appended to the vat Act. The rate of TDSwaseither 15% in case the contractor was under TIN or 5% in case the contractor was under composition scheme (GRN), as mentioned above.

Provisions under the GST act:

Under GST also, though a works contract is considered as composite supply, however, it is deemed to be a supply of services by virtue of entry 6(a) of Schedule II of the Assam GST Act,2017.

As per serial number 3of the Notification No. 11 (as amended), the value of a works contracts executed for Government Department/establishment shall be taxable at combined GST rate of12% (6% CGST and 6% SGST in case of intra-State works contract) or 12% IGST (in case of inter-State works contract).

Section 51of the Assam GST/CGST Act and section 20 of the IGST Act, requires every department or establishment of the State Government or central Government or local authority or government Agencies to deduct SGST at 1% and CGST at 1% in case of intra-State supply or IGST at 2% in case of inter-State supply from the payments to be made or credited to the supplier of taxable goods or services or both, where total value of such supply, under the contract exceeds two lakhs fifty thousand rupees.

It is important to note that even where the running payment made is less than Rs. 2.5lakh but if the total contract/supply value is more than Rs. 2.5 lakh, the provision of TDS under GSTshall apply to such payment.

The transitional provision containing in section 142(13) of the AssamGST Act, 2017 lays down that where a supplier has made any sale of goods in respect of which tax was required to be deducted at source under the Assam ValueAdded Tax Act, 2003 and has

also issued an invoice for the same before the introduction of GST i.e. before 01/07/2017, no deduction of tax at source under section 51 of the GST Act shall be made by the deduct or under the said section where payment to the said supplier is made on or after the appointed day i.e. 01/07/2017.

Now in the light of the above provisions, the matters relating to TDS in respect of work contract has been examined and following clarifications are issued:

(a)  WorksContractexecuted up to 30/06/2017 and the bills/invoices etc. also have been raised onorbefore30/06/2017 (during VAT period) but the payment is pending or made on or after 01/07/2017:

In respect of such payment, deduction of tax at source will be made as per the provisions of section47(1) of the Assam VAT Act. The applicable tax rate shall either be15% of taxable turnover or 5% of the gross turnover, as already mentioned above.

Provisions of deduction of tax at source (TDS) under the Assam GST Act, 2017shall does not apply to such cases [section 142(13)].

(b)  WorksContractexecuted upto 30/06/2017 but bills/invoices etc. have been raised on or after 01/07/2017 (during GST period) and the payment is also pending or made on orafter01/07/2017:

In respect of such payment, deduction of tax at source will be made as per the provisions of section51of the Assam GST Act, 2017sincetwoevents i.e., raising of invoice and payment of supply arise under the GST regime and the transaction was not accounted for under VAT. The applicable rate for deduction of tax at source (TDS) shall be: SGST 1% and CGST at 1% in cases of intra-State supply or IGST at 2% in case of inter-Statesupply.

Such contractor shall, however, remain liable to pay balance tax, as per the rates of tax applicable under GST law.

Provisions of deduction of tax at source (TDS) under the Assam VAT Act, 2003shall does not apply to such cases.

(c)  WorksContractpartially executed on or before30/06/2017 (during VAT period)and the balance works being executed on orafter01/07/2017 (during GST regime):

In case of works contract, which were partially executed on or before 30/06/2017(during VAT period), there can be two situations:

(i)  Bills/invoices were raised before GST: TDS will be made as per provision of the vat Act, as mentioned in para (a) above.

(ii)  Bills/invoices were raised after GST: TDS will be made as per provision of the GST Act, as mentioned in para (b)above.

In case of works contract, which are partially executed on or after01/07/2017 (during GST period) and invoices are raised during GST regime and payments are received during GSTperiod, since the transaction was not accounted for under VAT, TDS will be made as per provision of the GST Act, as mentioned in para (b) above.

(B)  SUPPLY OF GOODS /SERVICES: Provisions under the old Assam VAT Act:

Section 47(3) of the Assam VAT Act provides for deduction of tax at source by every person under the control of Government while making any payment in respect of the supply of taxable goods, at the rates specified in the schedules appended to the VAT Act.

Second Schedule provides for 6% taxable goods and Fifth Schedule provides for15% tax rate for unclassified or residuary goods not specified elsewhere.

Provisions under the GST act:

As mentioned in Para (A), section 51 of the Assam GST/CGST Act and section 20 of the IGSTrequires every State /Central Government department or establishment or local Authority or Government Agencies to deduct SGST at 1% and CGST at 1% in case of intra-State supply or IGST at 2% in case of inter-State supply from the payments to be made to the supplier of taxable goods or services or both, where total value of such supply, under the contract, exceeds two lakhs fifty thousand rupees.

At the cost of repetition, it is mentioned that even where the running payment made is less than Rs. 2.5 lakh but if the total contract/supply value is more than Rs. 2.5lakh, the provision of TDS under GST shall apply to such payment.

The transitional provision as laid down in section 142(13) of the Assam GST Act, 2017 provides that where supply of goods was made during VAT regime and also the invoice for the same was issued during VAT period i.e. on or before 30/06/2017, but payment to the supplier is made on or after the date of introduction of GST i.e. on or after 01/07/2017, no deduction of tax at source(TDS) under section 51 of the GST Act shall be made by the deductor.

Now in the light of the above provisions, the matters relating to TDSon supply of goods or service has been examined and following clarifications are issued:

(a)   ) Supply of goods made upto 30/06/2017 and the bills/invoices etc. also have been raised onorbefore30/06/2017 (during VAT period) but the payment is pending or made on or after 01/07/2017: 

In respect of such payment, deduction of tax at source will be made as per the provisions of section47(3) of the Assam VAT Act at the rates specified in the Schedules appended to the vat Act.

It may be mentioned that Second Schedule provides for 6% taxable goods (w.e.f. 4/7/2016prior to which the tax rate was 5% since 31/10/2009) and Fifth Schedule provides for 15% tax rate(w.e.f. 10/8/2016 prior to which the tax rate was 14.5% since 13/9/2013) for unclassified or residuary goods not specified elsewhere.

Provisions of deduction of tax at source (TDS)under the Assam GST Act, 2017shall does not apply to such cases [section 142(13)].

(b)   Supply of goods made upto 30/06/2017 etc but bills/invoices etc. have been raised on or after 01/07/2017 (during GST period) and the payment is also pending or made on orafter01/07/2017:

In respect of such payment, deduction of tax at source will be made as per the provisions of section51of the Assam GST Act, 2017sincetwoevents i.e., raising of invoice and payment of supply arise under the GST regime and the transaction was not accounted for under VAT.

The applicable rate for deduction of tax at source (TDS) shall be: SGST 1% and CGST at 1% in case of intra-State supply or IGST at 2% in case of inter-State supply.

The supplier of goods or services shall, however, remain liable to pay balance tax, as per the rates of tax applicable under GST law.

Provisions of deduction of tax at source (TDS)under the Assam VAT Act, 2003shall does not apply to such cases.

(c)   Supply of goods partially madeonorbefore30/06/2017 (during VAT period) and partially made on or after 01/07/2017 (during GSTregime):

In case of supplies of goods, which were partially made on or before 30/06/2017(during VAT period), there can be two situations:

(i)  Bills/invoices were raised before GST: TDS will be made as per provision of the vat Act, as mentioned in para (a) above relating to the supply of goods or services.

(ii)  Bills/invoices were raised after GST: TDS will be made as per provision of the GST Act, as mentioned in para (b) above-relating to supply of goods or services.

In case of supplies partially made on or after 01/07/2017(during GST regime), and invoices are raised during GST regime and payments are received during GSTperiod, TDS will be made as per provision of the GST Act, as mentioned in para (b) above, relating to the supply of goods or services.

(d)   Supply of goods and or services during post-GST regime i.e. on or after 01-07-2017:

In case of supplies of goods or services, which are exclusively made on or after 01-07-2017(during GST period) and invoices/bills are also raised during GST period, TDS will be made as per provision of the GST Act, as mentioned in para(b) above, relating to supply of goods or services.

Certain Government services are exempted under GST. In this regard, GST RateNotification No.12/2017 and 21/2017 may be referred to which are available atwww.tax.assam.gov.in and at www.cbec.gov.in

However, the provision relating to TDS under GST Law is put on hold for the time being and the same will be brought into force from a date which will be notified later.

This Circular is clarificatory in nature and not meant for any interpretation of provisions of the act and rules.

 

Anurag Goel,

Commissioner of State tax

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