Real Estate and Construction Industry: Pre & Post GST

The never ending litigation of taxation relating to works contracts, particularly in construction industry and more particularly & challenging in real estate industry, gets a fresh turn in GST regime. Let us travel through the recently retired regime of works contract in pre GST, to newly born GST regime, presently grappling with transitional issues. The subject is a little lengthy, hope you stay the length of present Article.

Works Contract under Pre-GST: Service Tax Law

The Service Tax Law was reincarnated on 1st July 2012 when the concept of Negative List came into being. In this Negative list Regime, a new sec 66E was introduced to specify certain services as “declared services” wherein two clauses (b) and (h) of Sec 66E dealt with cases of a Works Contract.

Clause (b) to sec 66E:                   Construction of a complex, building, civil structure including a complex or building indented for sale to a buyer except where the entire consideration is received after the completion certificate.

Clause (h) to sec 66E:                   Service portion in the execution of a Works Contract.

It is interesting to note that though the services declared in clause (b) relating to construction of complex as above very much falls within the meaning of Works Contract in clause (h), but still the legislature in its wisdom specifically also declared the construction of complex service separately in clause (b). It seems as if it has been done as an abundant caution to ensure that House Buyer Agreements (HBA)/ Builders Buyer Agreements (BBA) entered into by Real Estate developers with the prospective buyers of apartments, if in litigation are upheld as out of the meaning of Works Contracts under clause (h), still the Government can levy service tax under clause (b). However, the litigation went in favor of Government when the Supreme Court in the year 2013 upheld that such House Buyer Agreements by real estate developers does fall within the scope of Works Contracts, in the matter of L&T case, see full judgement at http://judis.nic.in/supremecourt/imgs1.aspx?filename=40833

In Pre-GST Service Tax law there were two notifications to deal with this valuation aspect of services from a Works Contract.

Valuation of Service portion in a Works Contract

It is to be noted that it is only the service portion of works contract/construction of complex, which can be the subject matter of service tax levy. A Works Contract is a composition of ‘Goods’ as well as ‘Services’ which are so intermingled with each other that it forms a Single Indivisible Composite Contract. Furthermore, in the case of House Buyers Agreement (HBA) executed by real estate developers, (which is also a Works Contract as upheld by Apex Court in L&T case supra), it is a composition of three things, undivided share in Land, Goods and Services, three of which are so intermingled that it forms a Single Indivisible Composite Contract. Thus the challenge is as to how to extract the value of service portion out of the Composite Value of such a Works Contract.

Notification No. 24/2012 dt 06.06.2012 amended rule 2A, dealt with works contracts covered in clause (h) of sec 66E i.e. other than real estate House Buyer Agreements (HBA).

(see full Notification No 24/2012 at http://www.cbec.gov.in/htdocs-servicetax/st-notifications/st-notifications-2012/st24-2012

Notification No. 26/2012 dt 20.06.2012 amended by Notification 08/2016 dealt with abatement in case of House buyers agreements (HBA) covered in clause (b) of sec 66E in case of Real Estate.

(see full Notification No.8/2016 at http://www.cbec.gov.in/resources//htdocs-servicetax/st-notifications/st-notifications-2016/st08-2016.pdf

Broadly speaking in case of construction contract (original works) the valuation of service portion used to be taken at 40% and in case of real estate House Buyer Agreements (HBA) the value of service portion used to be taken at 30%.

Works Contract under Pre-GST:  State VAT Laws

By and large all State Laws dealing with VAT defined Works Contract with quite a large scope including all the agreements of building construction, manufacture, processing, fabrications, erections, installations, fitting out, improvement, modification, repair, or commissioning of any Movable or Immovable property. All the State VAT Laws levied VAT on the value of Goods transferred in the course of executing the works contracts. All state VAT laws prescribed valuation rules to arrive at the value of Goods involved in the execution of works contracts and also notified an alternate way of composition scheme whereby in lieu of VAT, specific percentage of aggregate value of turnover was levied as composition levy. Most of the contractors as well as real estate developers used to opt for composition levy instead of going by valuation as per valuation rules. That is how the VAT liability used to be discharged till 30th June 2017.

Works Contract under GST Regime

Under GST regime the very difference of ‘Goods’ and ‘Services’ has been dispensed with. The concept of sale, manufacture and provision of service has gone and only a single concept of supply (whether of Goods or Services) has been brought in.

GST Law has come up with a new concept of “Composite Supply” which broadly means a supply consisting of two or more taxable supplies of goods or services or both or any combination thereof which are naturally bundled and supplied in conjunction with each other, one of which is principal supply.

Going by this definition of “Composite Supply” u/s 2(30) of the CGST Act, one can appreciate that all works contracts very much fall within the meaning of Composite Supply.

Further the concept of Works Contract has been redefined under the GST Law u/s 2(119) of CGST Act whereby the works contracts pertaining to movable property have been excluded from the definition of Works Contract and therefore only works contracts relating to immovable property fall within its statutory definition u/s 2(119). Thus in GST regime the hitherto concept of Works Contract gets bifurcated into

  • Works Contract (Immovable Property) covered u/s 2(119) of CGST Act
  • Works Contract (Movable Property) excluded from statutory definition of Works Contract and classified a Composite Supply u/s 2(30) of CGST Act.

Taxation of works contracts (Immovable Property)  u/s 2(119)

Like under Pre GST Service Tax law, the GST Regime has come up with Schedule II (Para 5 & 6) to declare certain supplies to be treated as supply of services. The clauses (b) and (h) of erstwhile sec 66E have been reintroduced as clause (b) of Para 5 & clause (a) of Para 6 to schedule II of CGST Act.

Clause (b) of sec 66E pertaining to construction of complex services has become clause (b) of Para 5 of Schedule II

Clause (h) of sec 66E pertaining to works contract service has become clause (a) of Para 6 of schedule II

The appreciable improvement is that in case of real state, apart from completion certificate, the first occupation of the Complex has also been given the sanctity of completion of the project irrespective that completion certificate of the project is awaited, thus after actual occupation of the complex, there will be no liability of GST only because the completion certificate is awaited from competent authority where delay is a routine.

Hence the application of brute force to composite works contracts to extract the value of goods and services for the levy of VAT and Service Tax, is no longer required, as under GST regime the works contracts is essentially service by deeming provision of declared services incorporated under schedule II of GST regime.

Rate of Tax:               The GST rate as per notified tariff via notification 11/2017-Central Tax (Rate) dated 28.06.2017 under CGST Act is 9% as per Serial No. 3. Equally 9% is the rate under SGST, thus a combined GST rate is 18%. However in case of Real Estate House Buyers Agreements (HBA) which involve value of Land also, there is a provision of abatement of 1/3rd value as per Para 2 of the aforesaid notification, thus the effective rate in case of Real Estate is 12%.

Input Tax Credit:     Full ITC u/s 16 (CGST Act) will be available on all inward supply of Goods/Services including Goods/Services under reverse charge, used as inputs for supply of works contracts service as per ITC rules. Provided in case of Real estate any excess ITC over output GST liability, will not be eligible for any refund.

At times there is a doubt raised whether clause (c) and clause (d) of sec 17(5) which restrict the ITC in relation to an immovable property, would pose any problem in availment of ITC in construction & real estate industry as both industries deal in construction of immovable property only. The author’s view is abundantly clear that the aforesaid doubt is absolutely unfounded and clause (c)/(d) of sec 17(5) has no application and there is no restriction at all in availing ITC because of these clauses of sec 17(5).

Transition from Pre GST to GST regime

The transition provisions are provided under chapter XX of CGST Act. Broadly the ITC pertaining to stock as on 30 June 2017 is allowed to be carried forward under GST regime. There is no composition scheme under GST regime and the construction industry has to maintain all books of accounts and inward supply record, to claim ITC from output liability on execution of works contract classified as supply of service.

In case of Government contractors they need to close their sales invoices which practically consist of completion of measurement books (MB) in government (Contractee) records. The MB completed and recorded till 30 June 2017 will remain under Pre GST regime while the MB prepared from 1st July 2017 onwards will attract full rate of 18% GST under new regime. For Government contractors with low inventory of WIP as on 30th June 2017, it will lower their tax burdens as their ITC on stock as on 30th June 2017 is likely to be low impacting their cash flow in new regime. Further the construction contractors and particularly government contractors need to revisit their construction contracts to ascertain the burden of additional tax liability under GST and to renegotiate with contractee as per revised costing under GST regime.

Taxation of Works Contracts (Movable Property) u/s 2(30)

All works contracts relating to movable property are no longer a works contract under statutory scheme of GST but rather all such works contracts relating to movable property are simply a case of composite supply u/s 2(30) of CGST Act. Therefore the rate of GST will be decided on the basis of “Principle Supply” under such works contracts (movable property). If the principle supply is that of services then the applicable GST rate on respective service will apply, and if the principle supply is that of Goods, then the applicable GST rate of such principle supply of goods will apply. Thus in GST regime, the theory of dominance test is back under the nomenclature of principle supply.

Full ITC u/s 16 (CGST Act) will be available on all inward supply of Goods/Services including Goods/Services under reverse charge, used as inputs for supply of works contracts service as per ITC rules.

Conclusion

Now under GST regime there is no mandatory extraction from composite value of Contract, to arrive at the value of Goods and Services separately but rather it is an issue of classification of works contracts (movable property) on the basis of principle supply. Thus now under GST the entire works contract (movable property), either it is a supply of goods or supply of service as decided as per dominant test called as principle supply test.

So far as the works contract (immovable property) is concerned, it is essentially a supply of service by virtue of schedule II.