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Presented By J.K. MITTAL (Advocate) Chairman, Indirect Taxes Committee, PHDCCI

J.K.Mittal FCA, FCS,LLB. Service Tax – Construction or Real Estate Sector. 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

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Presented By J.K. MITTAL (Advocate) Chairman, Indirect Taxes Committee, PHDCCI

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  1. J.K.Mittal FCA, FCS,LLB Service Tax – Construction or Real Estate Sector 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: jkmittalservicetax@gmail.com jkmittal@airtel.blackberry.com J.K.Mittal FCA, FCS,LLB

  2. Services Provided by a Builderw.e.f. 01.07.2012 Declared services.—The following shall constitute declared services, namely:– … 66E (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 is received after issuance of completion-certificate by the competent authority. Explanation.— For the purposes of this clause,— (II) the expression “construction” includes additions, alterations, replacements or remodelling of any existing civil structure J.K.Mittal FCA, FCS,LLB

  3. Services Provided by a Builderw.e.f. 01.07.2012 [Section 66E(b)] Explanation.— For the purposes of this clause,— (I) the expression “competent authority” means the Government or any authority authorised to issue completion certificate under any law for the time being in force and in case of non-requirement of such certificate from such authority, from any of the following, namely:–– (A) architect registered with the Council of Architecture constituted under the Architects Act, 1972; or (B) chartered engineer registered with the Institution of Engineers (India); or (C) licensed surveyor of the respective local body of the city or town or village or development or planning authority. J.K.Mittal FCA, FCS,LLB

  4. Builder service vis-à-vis bundled service w.e.f. 01.07.2012 Earlier, the activity of preferential location charges was treated as a separate service. Now, when a builder provides any service along with any other activity, then their interpretations have to be done on the basis of the introduction clause given under Section 66F laying down the principles of description of specific service or bundle service. Therefore, in such case, when the builder sells the flat to the prospective buyer, all other elements, may be the provision of electrical connection or location charges or providing other amenities in the flat will be treated as a bundle service, as it is naturally bundled, therefore, it will be the part of activity covered by Section 66E(b), however, when all such elements are not naturally bundled, then such provision of service shall be treated as a single service, which results into the highest tax liability. J.K.Mittal FCA, FCS,LLB

  5. Builder service and valuation w.e.f. 01.07.2012 Earlier, such builders were allowed to get the abatement to 75% when the value of land was part of transaction in respect of construction of a building intend to sale to the prospective buyer. Similar provisions have now been inserted in Notification No. 26/2012-ST, dated 20.06.2012 by giving 75/70% exemption from value/ abatement. However, now, CENVAT Credit benefit has been allowed in respect of input service and capital goods, which was not allowed earlier. The manner of valuation is given hereunder: J.K.Mittal FCA, FCS,LLB

  6. Abatement from value of taxable service under various services [Notification No. 26/2012-ST, dated 20.06.2012] J.K.Mittal FCA, FCS,LLB From 01.07.2012 to 28.02.2013 6

  7. From 01.03.2013 to 07.05.2013: J.K.Mittal FCA, FCS,LLB

  8. From 08.05.2013 onwards: J.K.Mittal FCA, FCS,LLB

  9. BURNING ISSUES: What is the meaning of “carpet area” for the purpose of Notification No. 2/2013-ST, dated 01.03.2013? Whether the charges such as PLC, parking, development charges, etc. charged in addition to the basic price would form part of ‘consideration’? How the service tax compliance is required to be made when at initial stage i.e. at the time of booking, there is no clarity about area due to various reasons? J.K.Mittal FCA, FCS,LLB

  10. Fair Market Value of goods/ services supplied by Service Recipient to be added Explanation –C to Notification No. 26/2012-ST, dated 20.06.2012 C. For the purposes of exemption at Serial number 12— The amount charged shall be the sum total of the amount charged for the service including the fair market value of all goods and services supplied by the recipient(s) in or in relation to the service, whether or not supplied under the same contract or any other contract, after deducting— (i) the amount charged for such goods or services supplied to the service provider, if any; and (ii) the value added tax or sales tax, if any, levied thereon:  Provided that the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles.            J.K.Mittal FCA, FCS,LLB

  11. Why the construction of complex or buildings intended for sale by the builder is not self-service? Education Guide dated 20.06.2012 in para 2.6.2, For example a builder carrying out an activity for a client wherein a flat is constructed by the builder for the client for which payments are received in instalments and on completion of the construction the title in the flat is transferred to the client involves two elements namely (1) provision of construction service and (2) transfer of title in immovable property. The two activities are discernibly separate. The activity of construction carried out by the builder would, therefore, be a service and the activity of transfer of title in the flat would be outside the ambit of service. This view appears to be not correct. J.K.Mittal FCA, FCS,LLB

  12. Why the construction of complex or buildings intended for sale by the builder is not self-service? Therefore, merely because if the payments are being made prior to the completion of the building, nature of the transaction cannot be changed. it is harsh to treat such transaction, one for service and one for sale. And there is same very consideration for both the transactions. Therefore, as a matter of debate, whether the activity for construction of a building by a builder, which he intends to sale, can be constituted as a service, merely because he starts collecting money from the buyer prior to the completion of building. J.K.Mittal FCA, FCS,LLB

  13. Why the construction of complex or buildings intended for sale by the builder is not self-service? Earlier the Government after examination issued the Circular No. 108/02/2009-ST, dated 29-1-2009 stating that it is a self-service. The Hon’ble Guwahati High Court Magus Construction Pvt Ltd v UOI, in 2008-TIOL-321-HC-GUW-ST : 2008 (11) STR 225 (Gau.) also held so that such a transaction is in the nature of self-service. J.K.Mittal FCA, FCS,LLB

  14. When a builder constructs a flat for the prospective buyer, why it is not a works contract? The declared service under Section 66E, two clauses have been inserted namely clause (b) and clause (h). Former clause is referring to the construction of a complex intended for sale and whereas clause (h) covers the activity of service portion in the execution of a works contract. A builder cannot constructs a flat and sells it to the prospective buyer, without having used any material at all. Therefore, when a material has been used, it is works contract and the Supreme Court in the case of State of Andhra Pradesh v L&T Ltd., 2008-TIOL-158-SC held that construction is a works contract. J.K.Mittal FCA, FCS,LLB

  15. Service portion in execution of a works contract J.K.Mittal FCA, FCS,LLB 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 contracts for constructions; and (b) Works contract in relation to any movable property like repairs to vehicles, printing contracts etc.” 15

  16. When a builder constructs a flat for the prospective buyer, why it is not a works contract? The Bombay High Court in the case of Maharashtra Chamber of Housing Industry & Anr. v UOI & Ors., 2012-TIOL-78-HC-MUM-ST : 2012 (25) STR 305 (Bom.) that value additions and services are provided by developers to buyers when a prospective purchaser purchases a flat or unit before a completion certificate is obtained and held that “we are firmly of the view that the legislative assessment on the basis of which a service tax is levied on the value addition which builders provide to buyers in the form of service rendered in the course of construction and construction related activities can by no stretch of imagination be regarded as so manifestly absurd so as to impinge on the constitutional validity of the provision…. the extent of the exemption has been enhanced to 75% of the gross value. What is taxed therefore is the value addition involved in the rendering of the service” J.K.Mittal FCA, FCS,LLB

  17. Services Provided by A Contractor w.e.f. 01.07.2012 Statutory Provision “declared service” means any activity carried out by a person for another person for consideration and declared as such under section 66E; [section 65B (22)] Declared services.—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

  18. Works Contract defined w.e.f. 01.07.2012 Section 65 B(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. “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)] J.K.Mittal FCA, FCS,LLB

  19. Works Contract – Court defined 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.” J.K.Mittal FCA, FCS,LLB

  20. ,Valuation in works contract Services J.K.Mittal FCA, FCS,LLB 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… 20

  21. Valuation under Works contract Service J.K.Mittal FCA, FCS,LLB (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 beenpaid 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.. 21

  22. Valuation under Works contract Service J.K.Mittal FCA, FCS,LLB % of the total amount charged for the works contract 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:— 22

  23. Table at a glance for service tax payable on different types of works contract under Rule 2A(ii) J.K.Mittal FCA, FCS,LLB 23

  24. “original works” J.K.Mittal FCA, FCS,LLB Whereas “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. [Explanation 1 to Rule 2A(ii)]. 24

  25. “works for goods” J.K.Mittal FCA, FCS,LLB works contract entered into for maintenance or repair or reconditioning or restoration or servicing of any goods. [Explanation 1 to Rule 2B]. 25

  26. “other works contract” J.K.Mittal FCA, FCS,LLB other works contracts, not covered under sub-clauses (A) and (B), including maintenance, repair, completion and finishing services such as glazing, plastering, floor and wall tiling, installation of electrical  fittings of an immovable property. [Rule 2A(ii)(C)] 26

  27. “total amount” J.K.Mittal FCA, FCS,LLB 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] 27

  28. No credit of excise duty on goods/ inputs J.K.Mittal FCA, FCS,LLB 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. 28

  29. 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 29

  30. Whether works contract service provided by the sub-contractor to another contractor providing works contract services are exempt from service tax? J.K.Mittal FCA, FCS,LLB 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] 30

  31. Certain Works Contracts exempted from service tax [Mega Exemption Notification No. 25/2012-ST, dated 20.06.2012] J.K.Mittal FCA, FCS,LLB 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. 31

  32. Under the serial No. 12of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB 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; 32

  33. Under the serial No. 12of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB (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; 33

  34. Under the serial No. 12of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB (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; 34

  35. Under the serial No. 12of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB “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.] 35

  36. Under the serial No. 12of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB 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. 36

  37. Under the serial No. 13of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB 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; 37

  38. Under the serial No. 13of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB (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; 38

  39. Under the serial No. 13of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB 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.] 39

  40. Under the serial No. 14of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB 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.] 40

  41. Under the serial No. 14of the Mega exemption Notification 25/2012-ST J.K.Mittal FCA, FCS,LLB (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; 41

  42. Bundled services Section 66F J.K.Mittal FCA, FCS,LLB 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. 42

  43. Bundled services Section 66F J.K.Mittal FCA, FCS,LLB (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. 43

  44. Bundled services Section 66F J.K.Mittal FCA, FCS,LLB 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. 44

  45. What is ‘governmental authority’? J.K.Mittal FCA, FCS,LLB 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. 45

  46. What is ‘governmental authority’? J.K.Mittal FCA, FCS,LLB 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. 46

  47. What is ‘government? J.K.Mittal FCA, FCS,LLB 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. 47

  48. What is ‘Central government? J.K.Mittal FCA, FCS,LLB 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. 48

  49. What is ‘state government? J.K.Mittal FCA, FCS,LLB 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. 49

  50. What is ‘state government? J.K.Mittal FCA, FCS,LLB 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 50

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