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Consult Construction

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Posted by on in VAT

2018-VIL-192-KAR

M/s PUNJ LLOYD LIMITED Vs THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES

Karnataka VAT Act – works contract – Books of Account - denial of deduction of labour and like charges - Prescribed Authority concluded the reassessment allowing the deduction of 30% of the works contract in terms of Rule 3(2)(m) rejecting the claim of the petitioner of the deduction of labour and like charges under Section 3(2)(l) of the KVAT Rules 2005 - whether respondent is justified in concluding the reassessment proceedings rejecting the claim of the petitioner to deduct the labour and other like charges under Section 3(2)(l) of the KVAT Rules –

HELD - the assessee has maintained proper books of accounts and it is only due to the copious size of the books of accounts, it would be practically difficult to produce the entire books of accounts, had requested the Prescribed Authority to examine the books of accounts at the business premises of the petitioner or else to insist for the specific expenses incurred, relating to which the books of accounts can be produced. A cartload of books of accounts requires to be examined by the Prescribed Authority to ascertain the genuineness of the claim made by the petitioner - It is the contention of the petitioner that notwithstanding the voluminous size of the books of accounts maintained by the petitioner, they are willing to place the same before Prescribed Authority -

In the circumstances, it cannot be held that the petitioner has not maintained the books of accounts or not willing to produce the books of accounts - for the limited purpose of providing an opportunity to the petitioner to produce the books of accounts before the Prescribed Authority to avail the deduction under Section-3(2)(l) of the KVAT Rules as claimed, the Court deems it proper to set-aside the order impugned herein and remit the matter to the Prescribed Authority to examine the books of accounts and arrive at a decision - the impugned orders are set-aside. The matter is remanded to the respondent to reconsider the matter afresh after providing an opportunity to the petitioner to produce the books of accounts – answered in favour of assessee

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2018-VIL-294-CESTAT-HYD-ST

GMR ENERGY VEMAGIRI POWER GENERATION LIMITED Vs CCCE, VISAKHAPATNAM-II

Service Tax - appellant had entered into an agreement with Korea Plant Service & Engineering Company Limited for operation and maintenance of power plant - Denial of refund of service tax paid on the operation portion of the contract entered into by appellant for operation and maintenance – revenue contention that doctrine of unjust enrichment is not satisfied –

HELD – it is the case of Revenue that the doctrine of unjust enrichment is not satisfied as the power purchase agreement entered with APSEB indicates only one price towards the purchase of power from GMR Energy Vemagiri Power Generation Limited, in all probabilities the service tax element for which refund has been claimed is included while arriving at the unit price of electricity sold to APSEB - the appellant had produced detailed Chartered Accountant certificate, which indicates the bifurcation of the amounts towards maintenance charges and operation charges and has specifically certified that appellant has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax - the said certificate clearly indicates the details on the basis of which the Chartered Accountant has come to a conclusion the amount for which refund claim is preferred, is borne by appellant-assessee – appeals filed by assessee is needs to be accepted and the impugned orders is set aside and the appeals filed by Revenue are rejected

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Posted by on in Service Tax

2018-VIL-286-CESTAT-DEL-ST

CCE, RAIPUR Vs M/s SHRI BANKE BIHARI ISPAT PVT LTD

Service Tax - Assessee acquired the Development Rights for the piece of land and subsequently, sold such Development Rights to other parties for a profit – transaction of purchase and the sale of Developmental Rights - Demand under services of Real Estate Agent service –

HELD - There is no evidence that the appellant provided any service of any development in respect of property - the appellant has always acted as purchaser and seller of Development Rights and immovable property - the activities as undertaken by the respondent would not fall under the category of ‘real estate agent’ services or ‘real estate consultant’ services  - the consideration received by the respondent is towards sale of Developmental Rights to the land and cannot be considered as commission for real estate agents services - the appeal filed by the Revenue is dismissed

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2018-VIL-170-MAD-ST

FIRM FOUNDATIONS & HOUSING PVT LTD Vs PRINCIPAL COMMISSIONER OF SERVICE TAX, CHENNAI

Service Tax - construction of residential apartments and complexes – petition challenging assessment by computation of service tax as per the Profit and Loss account prepared on the basis of the AS 7 – demand of differential tax - Relevance of the P&L accounts of the petitioner in the determination of point of rendition of service and the method of quantification of receipts in respect thereof - application of Rule 3 of the Point of Taxation Rules, 2011 –

HELD - AS 7 provides for a detailed methodology for the reporting and determination of the percentage of income from the contract over the term of the project and sets out the mode of computation for arriving at the same. The basis of such recognition and reporting is the apportionment of the income earned and expenditure incurred over the tenure of the project. This is entirely different and distinct from the scope, object and application of the Point of Taxation Rules that seeks to set out a methodology for determination of when the service was rendered and consequently when the receipt of income from such rendition be taxed - Rules 3(a) and (b) provide for the point of taxation to be either the point of raising of invoice or in a case where the service provider has received the payment even prior to the time stipulated in the invoice, upon receipt of such payment - Instead of such determination by application of the provisions of Rule 3, the department relies upon the P&L accounts to conclude that the amounts reflected therein have not been offered for service tax.

The reporting of income in the P & L being irrelevant for the purposes of determination of service tax payable, the basis of the impugned assessment is erroneous - The petitioner is recognizing revenue under the 'Project Completion Method' in terms of AS-7 issued by ICAI. We need not concern ourselves with the method followed for the preparation of financials as the same has no impact upon the Point of Taxation Rules. Suffice it to state that the AS provides a certain methodology for the computation of income from projects that is at variance with the method set out under Rule 3 - Insofar as Rule 3 sets out a specific modus operandi in this regard, it assumes priority and is the only relevant factor to be taken into account in the determination of point of rendition and accrual of services for the purpose of imposition of service tax - the impugned order of assessment is set aside and the matter remitted to the Respondent to be re-done de novo strictly in accordance with the provisions of Rule 3 of the Rules - The Writ Petition is allowed

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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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2018-VIL-176-BOM

LEIGHTON INDIA CONTRACTORS PVT LTD Vs THE STATE OF MAHARASHTRA

Maharashtra VAT Act – CST Act - goods used in execution of the works contract at a site, which is beyond 12 nautical miles from the State of Maharashtra – sale or export sale – writ petition challenging interim order of the Tribunal directing for part payment as pre-condition for stay against recovery of the tax pending the statutory appeal 

HELD - The legal issues raised either way ought to be answered on the basis of the nexus theory involved in the judgment of the Hon'ble Supreme Court and this court and whether that can be applied to the given facts and circumstances of the case - This was not a case where the Tribunal was confronted with purely factual matters and it was not required to consider anything further, but apply a settled principles to the facts - a sale or a sale in the course of execution of a works contract would need a deeper consideration.

That justifies an unconditional stay of recovery pending disposal of the appeal. This is a case where the Tribunal could have decided the legal issues finally instead of insisting on part payment - Consequently, the writ petition succeeds. The impugned order is quashed and set aside. The tribunal shall now decide the matter finally within a period of four months – the writ petitioned is allowed

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018-VIL-01-AAR

SWITCHING AVO ELECTRO POWER LTD

GST - Advance Ruling – classification of supply of power solutions, including UPS, servo stabiliser, batteries etc. – whether the contract is for Composite Supply [Section 2(30)] or Mixed supply [Section 2(74)] within the meaning of the GST Act, 2017 - what should be the tariff head when the UPS and the battery are supplied as separate goods, but a single price is charged for the combination of the goods supplied as a single contract – “naturally bundled” supply -

HELD – The applicant insists that as the battery, being supplied as part of an integral contract, remains naturally bundled with UPS i.e. the principal supply. This argument is fallacious. Goods are naturally bundled in a supply contract if the contract is indivisible - The contract for the supply of a combination of UPS and battery, if not built as a composite machine, is not indivisible.

The recipient can split it up into separate supply contracts if he chooses. The goods supplied in terms of such contracts are, therefore, no longer naturally bundled and cannot be treated as a composite supply - though UPS and Battery are two different and independent items, they are billed together and a single price is quoted for the sale -

The supply of UPS and Battery is to be considered as Mixed Supply within the meaning of Section 2(74) of the GST Act, as they are supplied under a single contract at a combined single price – Answered against applicant

 

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CESTAT concurs with Commissioner (Appeals), extends service tax exemption to activities of quarrying, sorting, loading, transportation and unloading of boulders for contractor engaged in construction of National Highway, under Notification No. 17/2005-ST;

Rejects Revenue’s stand that said activities were taxable as “Cargo Handling Services” in terms of sub-clauses (a), (b) & (c) of Section 65A(2) of Finance Act; Examining the scope of work contracted, CESTAT observes that services provided were in respect of construction of road, eligible for exemption under said Notification; Loading, unloading and transportation activities were merely ancillary and could not be considered as main services, which included excavation, sizing, stockpiling, and over burden removal;

Hence, they merit classification as “Site formation and clearance, excavation, earth moving and demolition services” provided for construction of National Highway  : Mumbai CESTAT


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TRANSITIONAL CREDIT U/S 140(3) NOT DENIABLE TO CONSTRUCTION SECTOR – By KK Sharma, Member CBEC (Retd.)

 

AN issue that affects construction service industry today is the admissibility or otherwise of transitional credit,u/s 140(3) of the CGST Act, of eligible duties/taxes paid on the inputs contained in semi-finished or finished goods , that is,on the inputs which had already been used in the construction of immovable property when the GST was rolled out on 1 July 2017. A view reportedly taken by certain Central Tax (CT) formations is that since buildings already constructed or still under-construction, being immovable property, are not "goods", as defined in S. 2(52) of cGST Act, the transitional credit of eligible duties/taxes paid on inputs used is inadmissible u/s 140(3).

2. Logic dictates that if construction of such buildings is a taxable supply in terms of S. 7(1)(d) ibid read with paras 5(b) and 6(a) of the Schedule II thereto, then,unless specifically denied under S.17(5), the credit of eligible duties/taxes used for making such supply must be available to the suppliers.The obvious question that arises, therefore, from the view taken by the CT officers is whether the language of S.140(3) goes counter to this logic. Is such transitional credit indeed not available?

3. Let us examine this issue by splitting it up into the following three pointed questions:

A. What does S.140(3) provide for vis a vis construction industry?

B. Does the term "goods" used in S.140(3) exclude the goods having become a part of the immovable property?

C. Does S.140(3) touch only works contractors or suppliers of composite supply of construction of complex etc. as well?

Now let us try to find answers to these questions:

A. Scope of S.140(3)

4. Relevant text of S. 140(3) of cGST Actruns as follows:

A registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No. 26/2012-Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day subject to the following conditions, namely:––

(i) such inputs or goods are used or intended to be used for making taxable supplies under this Act;

(ii) the said registered person is eligible for input tax credit on such inputs under this Act;

(iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of such inputs;

(iv) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day; and

(v) the supplier of services is not eligible for any abatement under this Act:

5. A similar provision exists u/s 140(3) of the sGST Acts and corresponding provision of the utGST Acts of all States/UTs.

6. This section broadly affects two kinds of construction service suppliers who were operating under the erstwhile Service Tax law regime but were:

(i) not registered thereunder either because they fell under the exemption threshold of Rs.10 lakh, prescribed vide Notification N0. 33/2012-ST dated 20.6.2012, or were engaged in providing exempt service(s); or

(ii) providing works contract services and availing the benefit of notification No. 26/2012-ST dated 20.6.2012 which denied to them CENVAT credit on inputs (for the 75% abatement in the value allowed thereunder, including that of land, charged by the service provider, compensated for the loss of such credit).

7. The obvious purpose behind enacting this provision u/s 140(3) was that if an activity, exempt under the existing regime, had become taxable outward supply under the new dispensation, then subject to the 5 specified conditions, the person making such supply, out of the opening stock of his inventory as on 1 July, 2017, would be entitled to the credit of inputs used for building that stock. There may be hundreds of suppliers of composite supply of construction service who had unsold inventory of such immovable property units on that day, some under construction and others already constructed. They obviously expected to benefit from this reasonable statutory entitlement.

8. There is no doubt that S.140(3) confers the entitlement to transitional credit, in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock, without exception on all the six kinds of suppliers mentioned therein, including works contractors whose only output supply is immovable property. Will not, however, the view reportedly taken by the CT officers render this entitlement meaningless, to the extent of inputs contained in semi-finished and finished units of immovable property held in stock by such works contractors? Will it not substantially defeat the very purpose for which this provision was enacted in the first place and make S. 140(3) wholly redundant vis a vis works contractors?

B. Treatment of inputs having become a part of immovable property

9. That question necessitates a closer look at the terms "input" and "goods" used in S.140(3). The word "Inputs" has been defined in S.2(59) of cGST Act to mean any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of business .The "goods" in turn has been defined in S.2(52) ibid to mean every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply. However and significantly enough, the ambit of the very same word "goods" has been slightly expanded,in the cGST Act itself while defining the "works contract" in S.2(119) – "works contract" means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. (emphasis supplied)

10. Thus, the goods would not lose their identity as goods even if they are converted into different sizes, shapes or forms in the course of execution of a works contract. The section 2(119),when read with paras 5(b) and 6(a) of Schedule II to cGST Act, unambiguously recognizes that an immovable property unit resulting from a construction of complex or works contract is a composite product of goods (inputs) purchased or fabricated by the contractor and the labour (input service) employed by him to build that property. When, therefore, a works contractor supplies a unit of this product to its recipient, he does not supply goods. He transfers to the recipient only the property in goods and that too in the form these exist in that unit. Isn't it, therefore, fair to assume that in works contracts, it is the property in goods in the form they exist in an under-construction or already constructed unit, as opposed to the goods as such, that constitutes the semi-finished or finished goods? If it was not so, why in the first place would S.140(3) accommodate a works contractor within its fold? Should the inclusion of works contractor therein be dismissed as a mere drafting error?

11. Here, it would be instructive to recollect how a "works contract" was defined in the now rescinded Finance Act, 1994 which authorized the Central Government to collect service tax on the service portion of the works contract. A "works contract", according to S. 65B(54) of that Act, as it stood on 30.6.2017, meant 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. Further, even under the erstwhile CENVAT Credit Rules, 2004, a provider of works contract service was eligible for CENVAT credit of various kinds of duties paid on the inputs/goods used for providing works contract service, which resulted in the construction of immovable property. Can this duty credit be disallowed now that those Rules have been subsumed into the GST law and a works contract has been declared as contract for composite supply of service?

12. It is a common knowledge that the phrase "goods whether as goods or in some other form)" incorporated in the GST law has been borrowed from the State VAT laws which allowed credit of tax, paid on goods/building materials used in the execution of a works contract, and allowed its adjustment against the tax liability on such works contract, even when these goods had taken a different form by becoming a part of immovable property.The Delhi VAT Act, 2015, for instance, defined the term "goods", and "sale" respectively under S.2(m) and S.2(zc)(v) as follows:

S.2(m) "goods" means every kind of moveable property (other than newspapers, actionable claims, stocks, shares and securities) and includes –

(i) livestock, all materials, commodities, grass or things attached to or forming part of the earth which are agreed to be severed before sale or under a contract of sale; and

(ii) property in goods (whether as goods or in other form) involved in the execution of a works contract.

S.2(zc)(v) "sale" with its grammatical variations and cognate expression means ….and includes-

(i)-(iv) ….

(v) transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;

Further S.9 ibid, laying down rules for allowing/disallowing input tax credit made it clear, vide Explanation to S.9(2), that This sub-section does not prevent a tax credit arising for goods and building materials that are purchased either for the purpose of re-sale in an unmodified form, or for the performance of a works contract on a building owned or occupied by another.

13. A natural corollary of the expanded meaning of "goods", imported from the State VAT into the GST law,therefore, is that for the limited purpose of works contracts, the goods (inputs) like cement, bricks, TMT bars etc.,which have changed their form to become a part of the immovable property, would have to be treated as semi-finished or finished goods and, therefore, eligible for ITC under S.140(3) of the cGST Act. Considering them as an immovable property would in fact take them out of the GST net altogether in terms of para 5 of Schedule III to the cGST Act.

14. It is not open to question that the meaning of any word or phrase used in any statute can't be stretched or shrunk beyond what is expressly assigned to it in the statue itself, generally by way of a definition or interpretation clause, or an explanation. It is, however, equally undeniable that if the context in which a word, expressly defined in a statute has been used, conveys a different meaning and requires a flexible interpretation to serve that context, the law permits it. That precisely is the meaning of the opening line of S.2 of cGST Act "In this Act, unless the context otherwise requires --"

15. To sum up, so long as the outward supply remains taxable under GST law, then, unless the ITC is explicitly barred, credit of tax paid on inputs will invariably be available. It can't be denied by implication. Even under S.17(5) of cGST Act, where ITC in respect of certain inputs and input services has been specifically disallowed, including works contracts and construction service under sub-clauses (c) & (d) thereof, exceptions have been made in every case where the inputs and input services are used directly for making taxable supplies.

C. S.140(3) and suppliers of construction of complex service.

16. S.140(3) expressly refers only to works contract service and not to construction service in general. Does it, therefore, imply that the suppliers of other construction services, such as construction of complex, are not eligible for transitional credit contemplated therein? In this connection, it is essential to remember that the expression "construction" finds mention in the cGST Act at the following places:

(i) S. 2(119) which defines a works contract (reproduced in para 9 supra);

(ii) Sub-sections (c) and (d) of 17(5) which list up the goods and services in respect of which no ITC is admissible --

"(c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service;

(d) goods or services or both received by a taxable person for construction of an immovable property(other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business.

Explanation.––For the purposes of clauses (c) and (d), the expression "construction" includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property"

(iii) Para 5(b) and explanation (2) thereto of Schedule II which, as declared in S.7(1)(d), spells out as to which supplies are to be treated as supplies of goods or services.

5. Supply of services

The following shall be treated as supply of service, namely:-

(a) ----

(b) construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation, whichever is earlier.

Explanation. -For the purposes of this clause-

(1) …….

(2) the expression "construction" includes additions, alterations, replacements or remodelling of any existing civil structure;

17. Similarly, the term "works contract" appears in the said Act only at the following three places:

(i) S. 2(119), which is reproduced at para 9 supra;

(ii) S. 17(5)(c) which is reproduced at para 16(ii) supra; and

(iii) Para 6(a) of Schedule II, which is extracted below:

6. Composite supply.

The following composite supplies shall be treated as a supply of services, namely:-

(a) works contract as defined in clause (119) of section 2;

18. It would be seen that both the terms viz. "works contract" and "construction of complex" etc. involve construction of immovable property. Further,though both provide goods as well as service to the recipients, their supply has been declared under the GST law as supply of service. Also, both fall under Heading 9954 of Classification of Services, detailed in the Annexure to Notification No. 11/2017-CT(R) dated 28.6.2017. It is noteworthy that while the entire Section 5 of Chapter 99 of the Tariff, in which the Group 9954 falls, is captioned "Construction Services", the expression "works contract" finds mention in none of the 63 individual services classified thereunder. On the other hand, of the 12 entries against sl. No. 3, of the table appended to Notification No. 11/2017-CT(R) dated 28.6.2017 as amended (that notifies tax rates on services), relating to "Construction Services" of Heading 9954, as many as 10 entries specify tax rate on "Composite supply of works contract" and only one for construction of complex" etc.

19. Clearly, both the "construction services" and "works contract" have by and large been used inter-changeably. Essentially, what distinguishes a works contract from construction of complex is the ownership of land on which the said property is to be constructed. In case of a typical bipartite works contract for construction of immovable property, the land belongs to the potential owner of property and a works contractor supplies only goods and services required for its construction. In case of construction of complex, on the other hand,it is the supplier of construction services who owns or controls the land until it/its proportionate share is also assigned to the transferee(s) of individual unit(s) in the complex.

20. The land being immovable property is outside the GST purview, as provided in S.7(2) of cGST Act read with para 5 of Schedule III thereto. Its value is, therefore, excluded to arrive at the taxable value of construction service. The value of land or of the undivided share of land in construction of any immovable property has been pegged, vide para 2 of the Notification No. 11/2017-CT(R) dated 28.6.2017, at one-third of the total amount charged for the supply of the service as well as transfer of land or undivided share of land. Thus, the taxable value of supply of service, excluding the land value, is taken as two-thirds of the total price charged.

21. In this context, it is also relevant to remember that in case of construction of complex, the supply is deemed to be taxable, as laid down in para 5(b) of the Schedule II, only where whole or a part of the consideration is received by the person engaged in the construction of complex from the buyer either:

(i) before issuance of a completion certificate, where required, by the competent authority; or

(ii) before its first occupation (by the builder of the complex himself),

whichever is earlier.

22. It is also not without import that notification No. 26/2012-ST itself, referred to in S.140(3) of cGST Act,confers the said exemption on any person who was providing "works contract service" in relation to "Construction of a complex, building, civil structure or a part thereof, intended for a sale to a buyer, wholly or partly except where entire consideration is received after issuance of completion certificate by the competent authority" (emphasis supplied).

23. Thus, subject to the two conditions mentioned in para 21 above and shorn of land value component, which in any case is excluded from the taxable value of construction service, all projects for construction of complex are, in essence, for composite supply of works contracts service. Accordingly, the entitlement to credit under S.140(3) applies as much to the supplier of construction of complex service as to a works contractor.

24. In my humble view, therefore, the stand reportedly taken by the Central Tax formations is not consistent with the relevant provisions of law and calls for reconsideration.

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