Works Contract – Attraction disappears with Budget 2012 By CA Pradeep Jain & CA Preeti Parihar

By CA Pradeep Jain & CA Preeti Parihar in TIOL

 

BUDGET 2012 has brought major changes in the Works Contract to align the same with the new scheme of Service Tax by negative list. Implementation of Service Tax by negative list is a step towards betterment. But in its guise, the consequential amendments in various existing services seem to have increased the complexities. Same is the case with Works Contract. The amendments brought by recent Budget and their impact are the parts and parcels of this article.
Increase in rate:
The rate of works contract is increased from 4% to 4.8%. For this Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 have been amended vide notification no. 10/2012-ST dated 17.3.2012. The increased rate is affective as from 1.4.2012.
Reverse charge method extended to works contract
Under reverse charge method, the recipient of taxable service is notified as the person liable to pay the service tax. The reverse charge method has been extended to the works contract scheme vide Notification no. 15/2012-ST dated 17.3.2012, effective from the date the finance bill gets approval from the President. In this notification, liability of paying the 50% service tax is casted on the recipient of works contract service and remaining still lies on the provider of the service.
Valuation of Works Contract amended
At present, the value of Works Contract is determined as per Works Contract (Composition Scheme for Payment of Service Tax) Amendment Rules, 2007. Budget, 2012 has proposed to introduce the negative list of service and to line up with the same it is proposed that the valuation of Works Contract to be done in accordance with the Service Tax (Determination of Value) Rules, 2006. For this a new rule – 2A is being substituted vide Notification no. 11/2012-ST dated 17.3.2012 which is effective from the date negative list comes into effect. This rule states the following features for the valuation of the Works Contract service:-

+ Value of Works Contract = Gross amount charged – Value of transfer of property in goods. However, VAT or Sales Tax is not includible in the value of material supplied.
+ Value of Works contract service shall include the labour charges, amount paid to sub-contractor for labour and services, charges for planning, designing and architect's fees, hire charges for machinery and tools, cost of consumables like water, electricity, fuel, etc., cost of establishment of contractor relatable to supply of labour and services, profit earned in relation to supply of labour and services.
+ In the cases where VAT has been paid on ACTUAL value of transfer of property in goods, then this value will considered while calculating the value of Works Contract.
+ If the VAT is not paid on the ACTUAL value, the assessee will calculate the same for the purpose for service tax and it will be deductible from the gross value. However, if the actual value is not ascertainable, then the following percentage will be the taxable value for the purpose of paying the service tax:-

Nature of Works Contract	Service tax payable on
Execution of original works **	40% of total amount*** charged for Works Contract. Where total amount includes the value of land, it will be 25% of total amount charged.
Other Works Contract including completion and finishing services like glazing, plastering, floor and wall tiling, installation of electrical fitting not covered above.	60% of total amount charged for Works contract.

**The original work means - all new constructions and all types of additions and alterations to abandoned or damaged structures on land required to make them workable;
*** Total amount includes the value of all goods and services – VAT - services supplied free of cost under the same contract or any other contract.
+ Where value of goods or services supplied free of cost is not ascertainable, the same shall be determined on the basis of the fair market value closely available resemblance.
+ Cenvat Credit of duty paid on inputs will not be allowed.

Old method v/s new method of valuation:-
Old rule 2A had some of the features as the new one has. Some key features forming base of Works Contract service have been kept intact like the exclusion of VAT and non availment of Cenvat credit of inputs. As such, credit on capital goods and input services continue to be allowed. However, the manner of determining the gross amount charged for the Works Contract has been slightly changed. Under old rules, the cost of machinery and tools used in the execution of the said works contract were specifically excluded. However, there is no mention of the same in the new rule 2A. However, the charges of obtaining them on hire have been specifically included as were there in the old method. The drastic change has been done by defining the manner of determining the value of Works Contract. In old rules, the value of Works Contract to be taken for the purpose of taxation was simply as accounted by the service provider. However, in the new rule 2A, in the cases where the VAT is not paid on the actual value of transfer of property in goods, value is to be taken on the basis of fixed percentage.
Our outlook:-

+ As per newly substituted rule 2A, it is mentioned that the value of Works contract service shall include the amount paid to sub-contractor for labour and services. It implies that the cost of material paid to sub-contractor will not be included. There may be cases, where the sub-contractor is hired for a lumpsum consideration. In other words, the amount paid to sub-contractor is not separately defined. In such cases, how the said amount will be bifurcated so as to include the amount paid for labour and services only.
+ Further, this rule also says that the value of works contract will include the cost of establishment of contractor relatable to supply of labour and services. Normally, only one establishment is hired by the contractor in execution of a particular works contract. Normally, this is used for keeping the material and capital goods used in the execution of works contract. Sometimes it is also used for residence of any worker for the safety of the material. That single establishment is used for a number of purposes but the rent paid for the same is undivided. Here the new rule says that cost of establishment of contractor relatable to supply of labour and services will be included. But normally there is a common establishment used for number of purposes, how its cost will be bifurcated, is not clarified.
+ The new rule also says that where the VAT has been paid on the ACTUAL value of transfer of property in goods, then this value shall be considered while calculating the taxable value under the Works Contract service. However, in the case where VAT is not paid on the actual value, i.e. where the assessee has opted for composition scheme under Sales Tax, the assessee will calculate the actual value of goods and it will be deductible from the gross value. However, in the cases where the value is not ascertainable as above, the taxable value of Works Contract shall be based upon fixed percentage - 40%/25% in case of original works or 60% in case of other works contracts. It is clarified in above TRU letter F. no. 334/1/2012-TRU dated 16.3.2012 that this is not an option and it is to be done only if the value cannot be calculated for any reason. Thus, the formula prescribed (Value of Works Contract = Gross amount charged – Value of transfer of property in goods) will be applicable only where actual value of material is available, whether as per sales tax or specifically calculated for the purpose of Service Tax. In other cases, the taxable value shall be based upon the percentage prescribed.
+ The rule 3(1) of the Works Contract (Composition Scheme for Payment of Service Tax) Amendment Rules, 2007 says that –

"3. (1) Notwithstanding anything contained in section 67 of the Act and rule 2A of the Service (Determination of Value) Rules, 2006, the person liable to pay service tax in relation to works contract service shall have the option to discharge his service tax liability on the works contract service provided or to be provided, instead of paying service tax at the rate specified in section 66 of the Act, by paying an amount equivalent to four per cent (w.e.f. 1.4.2012 - 4.8%) of the gross amount charged for the works contract."

Thus, the above rule has overriding effect on the section 67 of the Finance Act, 1994 and rule 2A of the Service (Determination of Value) Rules, 2006. It gives an option to the service providers that they can pay the service tax at the rate specified thereunder without having regard to the normal rate of service tax. Section 67 will cease to have its effect as from the date the negative list comes into force and as from that date new charging section 66B will be applicable.
In the para no. 13 of TRU letter F. no. 334/1/2012-TRU dated 16.3.2012, it is mentioned that a new rule is being introduced to SUBSTITUTE the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Further, rule 2A of Service Tax Valuation rules is being substituted vide Notification no. 11/2012-ST dated 17.3.2012 which says that value of works contract shall be determined in accordance with this rule.
The effect of all the above is that rule 3(1) gives an option to the service provider to opt for the rate of 4% (4.8% w.e.f. 1.4.2012). However, as per TRU letter, it seems that the new rule 2A will substitute the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. But the option of composition scheme is affected by these rules, thus the withdrawal of these rules will also cease the composition scheme.
Further, the rate of 4% is itself mentioned in the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. This rate is enhanced to 4.8% w.e.f. 1.4.2012 by virtue of notification no. 10/2012-ST dated 17.3.2012. But as it seems from the language of TRU letter that the Composition rules are going to be substituted by some other rule, so there remains doubt whether the new rate will be prescribed somewhere else or will it be effective only till the date of implementation of negative list. If the scrapping of composition rules happens, it will mean that the service tax on works contract is also payable at the normal rate prescribed under the Finance Act, 1994.

+ The reverse charge method is extended to the works contract services to the extent of 50%. Thus, 50% service tax is payable by the recipient and the remaining by the provider of works contract service. But how the value shall be calculated for the purpose of paying the service tax? Whether it will be calculated separately by the service provider and service recipient? No clarification available. Further, what is the logic behind fixing the liabilities of two persons in respect of one amount? Simply increasing the costs and tension on part of both the parties involved therein.

While concluding
The composition scheme of works contract is as old as the works contract scheme. Being implemented on 1.6.2007, it offered an attractive rate of 2% on composite value of works contract. Alongwith this minimal rate, Cenvat credit of capital goods and input services was also allowed. As the scheme was so attractive, most of the service providers in reality sector had switched over to this scheme. However, the attractiveness was reduced by increase in the rate to 4% vide notification no. 7/2008-ST dated 1.3.2008. Now it is again increased to 4.8%. However, with the amendments made in the recent Budget indicates that the optional composition scheme is going to be withdrawn and the normal rate of service tax will be payable thereupon. But looking to the complexities of the new rule 2A and transitional phase of service tax by negative list; it seems that works contract will again build the towers of litigation.