BENEFIT OF COMPOSITION SCHEME

WHETHER THE BENEFIT OF COMPOSITION SCHEME UNDER WORKS CONTRACT SERVICE IS AVAILABLE FOR ONGOING WORKS CONTRACT?

Works Contract (Composition Scheme for Payment of Service Tax) Rules was made by the Government made effect from 01.06.2007. The term 'Works Contract Service' has the meaning as defined under Sec. 65(105)(zzzza) of Finance Act, 1994. According to Sec.65(105)(zzzza) the taxable service means any services provided to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. The explanation to above section defines 'works contract' as 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 purposes of carrying out-
· Erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or
· Construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or
· Construction of a new residential complex or part thereof; or
· Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to the previous two points; or
· Turnkey projects including engineering, procurement and construction or commissioning (EPC) projects.
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 an amount equivalent to four per cent of the gross amount charged on the works contract.
The gross amount charged for the works contract shall not include value added tax or sales tax as the case may be, paid on transfer of property in goods involved in the execution of the said works contract.
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.
The provider of taxable service who opts to pay service tax under these rules shall exercise such option in respect of a works contract prior to payment of service tax in respect of the said works contract and the option so exercised shall be applicable for the entire works contract and shall not be withdrawn until the completion of the said works contract.
The case law 'In Re. M.B. Chitale Constructions' 2008 (11) STR 583 (Commr. Appeals) gives the answer for the question arised in the topic. The appellant with the intention to avail the benefit under Composition Scheme for payment of service tax approached the Central Excise Authorities and gave option of composition scheme under the new head of taxable service i.e., works contract service and accordingly requested for issuing fresh/amended registration certificate. They further informed that they were issuing running bills and service tax was charged accordingly but they will take the benefit of composition scheme for the remaining part of the works contract. The Deputy Commissioner in response to the letter of the appellant informed that they could not to pay service tax at 2% in respect of ongoing contracts due to the reasons spelt out in Rule 3 of the Rules as under:
Option should be given in respect of works contract prior to payment of service tax;
· The option exercised shall be applicable for the entire work contract.
The appellants against the order of Deputy Commissioner, in this appeal made the following contentions:
That in the absence of any expression 'ongoing works contract' in the statutory provisions, notification or clarificatory circular of the Board, the Deputy Commissioner has no authority to give such a decision;
· That the option under Rule 3(3) of Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007, is open and hence available to any service provider including the appellant on the part of works contract which is yet to be provided or completed and he can pay service tax @ 2% in respect of the part of the works contract to be executed after 1.6.2007.
· That running bills are obviously made only part of the contract is completed in a progressive manner and when such running bills is made and when service tax is paid on such portion, then the next portion is totally a new job for further progress of the entire works contract;
· That portion of the contract already executed before 01.06.2007 rightly attracted service tax under the then appropriate category.
The Commissioner (Appeals) held that in the instant case the appellant who is holder of service tax registration under 'commercial and industrial construction services', had already started paying service tax under the provisions of Notification No.1/2006 read with Section 66. Besides the same Rules speaks that the option has to be exercised for the entire works contract. In the instant case the appellant himself has accepted that they have provided some services and paying service tax on the running bills. Therefore, a part of service has already been completed and service tax has been paid under Sec. 66. Therefore, the appellant cannot exercise option under Rule 3(1) of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007.
The Commissioner further held that composite scheme itself means that various elements which are taken together will complete a works contract. In other words, the works contract is a contract for the sale of goods as well as the provision of work or services, but is indivisible in nature, meaning that the value cannot be easily broken into these constituent elements. In the instant case the appellant has already provided some services and paid service tax. As such the services for which the appellant wants to exercise option under works contract may not constitute a composite contract. Besides in the composite contract the works contractor is required to pay service tax on the entire value of the contract without making a split of the value of the goods and material supplied and the value of the services provided. But in the present case a part of the services have already been completed and therefore the remaining part of the service for which the appellant wants to exercise option under works contract services may not be considered as a composite works contact.
In view of the above, the Commissioner held that the appellant is not eligible to exercise option under Rule 3(1).

DOCUMENTS IN SERVICE TAX

IMPORTANT DOCUMENTS IN SERVICE TAX

Let us discus few important documents which assessees are expected to maintain under service tax provisions.
Following are the important documents required to be maintained by service tax assessees —
Invoice
Time period for raising an Invoice
Rule 4A of Service Tax Rules states that every person providing taxable service, not later than fourteen days from the date of completion of such taxable service, or receipt of any payment towards the value of such taxable service whichever is earlier, shall issue an invoice, a bill or as the case may be, a challan signed by such person or a person authorised by him in respect of such taxable service provided or to be provided and such invoice, bill or as the case may be, challan shall be serially numbered.
Contents of an Invoice
Rule 4A states that the invoice shall contain the following particulars —
(i) the name, address and the registration number of such person;
(ii) the name and address of the person receiving taxable service;
(iii) description, classification and value of taxable service provided or to be provided; and
(iv) the service tax payable thereon.
For Banking Companies
In the case of a banking company or a financial institution including a NBFC or any other body corporate, or commercial concern, providing service to a customer, in relation to banking and other financial services, an invoice, a bill or as the case may be, challan shall include any document by whatever name called, whether or not serially numbered and whether or not containing address of the person receiving taxable service but containing other information in such documents as required under this law.
Goods Transport Agency
In the case of provider of taxable service is a Goods Transport Agency, providing service to a customer, in relation to transport of goods by road in a goods carriage, an invoice, a bill or as the case may be, a challan shall include any document by whatever name called, which shall contain the details of the consignment note, number and date, gross weight of the consignment and also contain other information as required under this law.
Continuous Services
Where any payment towards the value of taxable service is not received, and such taxable service is provided continuously, for successive periods of time and the value of such taxable service is determined or payable periodically, an invoice, a bill or as the case may be, a challan shall be issued by a person providing such taxable service, not later than fourteen days, from the last day of the said period.
Input Service Distributor
Every input service distributor distributing credit of taxable services, shall in respect of credit distributed, issue an invoice, a bill, as the case may be, a challan signed by such person or a person authorised by him, for each of the recipient of the credit distributed, and such invoice, bill or as the case may be, challan shall be serially numbered and shall contain the following namely —
(i) the name, address and registration number of the person providing input services, and the serial number and date of invoice, bill or as the case may be
(ii) the name and address of the said input service distributor
(iii) the name and address of the recipient of the credit distributed
(iv) the amount of the credit distributed
In case the input service distributor is an office of a banking company, or a financial institution including a NBFC or any other body corporate or commercial concern, providing service to a customer, in relation to banking and other financial services an invoice, a bill or as the case may be, challan shall include any document whatever name called whether or not serially numbered, but containing other information in such document as required under this law.
Consignment Note
Rule 4B of Service Tax Rules state that any Goods Transport Agency which provides service in relation to transport of goods by road in a goods carriage shall issue a consignment note to the customer. Where any taxable service in relation to transport of goods by road in a goods carriage is wholly exempted, the Goods Transport Agency shall not be required to issue the consignment note.
Consignment note means a document issued by Goods Transport Agency, against the receipt of goods for the purpose of transport of goods by road in a goods carriage which is serially numbered and contains the name of the consignor and consignee, registration number of the goods carriage in which the goods are transported, details of the goods transported, details of the place of origin and destination, person liable for paying service tax, whether consignor, consignee or the Goods Transport Agency.
TR-6 Challan
Rule 6(2) of Service Tax Rules states that the assessee shall deposit service tax in Form TR-6 or in any other manner prescribed by CBEC. TR-6 Challan has since been replaced by GAR 7 challan which is now mandatory for use for electronic payments.
Returns
Rule 7 of Service Tax Rules states that every assessee shall submit a half yearly return in Form ST-3 or ST-3A, as the case may be, in triplicate along with a copy of the Form TR-6 for the months covered in the half yearly return.
Registration
Rule 4 of Service Tax Rules states that every person liable for paying the service tax shall make an application in Form ST-1 for registration within a period of 30 days and the Registration certificate will be in Form ST-2.
Form of Appeal
An appeal to Commissioner of Appeals shall be in Form ST-4 and to the Appellate Tribunal in Form ST-5 in quadruplicate, and shall be accompanied by a copy of the order appealed against.
Cenvat Documents
An assessee desirous of taking Cenvat credit, is permitted to use the following documents —
(a) Invoice of input service provider issued on or after 10.9.2004;
(b) Invoice of input service distributor;
(c) Invoice of Manufacturer/Importer or his agent;
(d) A challan evidencing payment of service tax by the person liable to pay service tax.
Records
Freedom has been given to the assessees to maintain their own set of records but such record should, however show the required particulars for taxation purposes.

STORY-OF-THE-WEEK

TANSEN THE SINGER
Here is an anecdote from the life of the famous Emperor Akbar who was very fond of music. Musicians and artisans were given a lot of encouragement at Akbar’s court. The great singer Tansen was his court singer. One day Akbar said, “Tansen, you sing so beautifully. I am sure that there is no one in the world who can sing better than you.” Tansen replied humbly, “Badshah Salamat (your royal highness), I beg to differ. There is one person who sings more sweetly than me.”
Akbar said, “That is impossible. Who is he?” Tansen said, “Oh Badshah! He is my Guru Shri Haridas. If you want to hear him sing, you shall have to come with me to Vrindavan.”
So it was settled. Akbar went to Vrindavan along with Tansen. They reached there in the late evening. Tansen said, “Maharaj, my Guru should be resting now. Let us also sleep. We shall go to see him in the morning.”
In the wee hours of the morning, Akbar woke up to the sound of someone singing. He listened intently. The singer was singing a devotional song, to wake up the baby Krishna sleeping in His cradle. So sweet were the notes and so heavily were they drenched in love and devotion that the voice was divine and sweet beyond words. Akbar was totally immersed in the sweet nectarine words and intoxicating music. Tansen woke up to find Akbar totally overwhelmed by the sweetness of the song that he was unconsciously an audience to. Tansen whispered into the ear of the Emperor, “My Lord that is my Guru Haridas.”
Akbar slowly opened his tear-filled eyes and asked, “You too sing in my court Tansen; but what is this? Yah Allah! What sweetness! I have never experienced this before! What is the difference?” Tansen said, “Badshah Salamat there is only one difference. But it is a great big difference.”“What is that?”“My Lord, I sing for the Badshah of Delhi. My Guru Haridas sings for the Badshah of the Universe!”
What an enormous difference! Anything and everything that is done with love and devotion for God becomes sweet and beautiful. Bhagawan Baba tells us that, devotion is not a uniform to be worn on special occasions. Devotion is a way of life!
SANJAY TANDONCOMPETENT-CHANDIGARH