This document provides an overview and analysis of service tax and VAT in the context of works contracts, construction, and EPC contracts in India. It begins with defining works contracts and discussing the key legal cases that established works contracts as divisible into goods and services components for taxation purposes. It then examines the relevant definitions and provisions around works contracts under the Maharashtra VAT and Indian service tax law. Key topics covered include valuation methods, inter-state works contracts, exemptions, and the implications of important court cases like Kone Elevators. The document serves to explain the basic concepts and analytical framework for understanding the taxation of works contracts in India.

1. Analysis of “Service Tax & VAT” in
Works Contract, Construction and EPC
Contract
Presented by:
Ca. Payal (Prerana) Shah
Organised by:
Women Members Empowerment Committee jointly
with IDT Committee of ICAI
Training Programme on Service Tax

2. Discussion Bullets
• Meaning of Works Contract & History
• Basics under Service tax and Maharashtra VAT
• Inter-state Works Contract
• Valuation
• WCT TDS under MVAT
• Reverse Charge under Service tax
• Service tax Exemptions
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3. MEANING OF WORKS CONTRACT &
HISTORY
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4. What is Works Contract?
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Commercial
activities
Sale of
Goods
Provision of
services

5. What is Works Contract?
• Contract of Work
– Basically a Labour Contract
– Popularly considered as a contract of material as well as services
– Most Works Contract invariably involve goods element
• Eg.: Construction; stitching etc.
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6. Gannon Dunkerly’s case (SC) 1958 (9 STC 353)
• “Sale” in Entry 54 is Sales as per Sale of Goods Act, 1930
– Taxes on the sale or purchase of goods other than newspapers, subject
to the provisions of entry 92A of List I
• Sec 4(1) of SOGA
– Seller Transfers or Agrees to Transfer
– Property in Goods
– To the Buyer
– For a Price
• Interpretation of Court
– Agreement required
– For sale of very goods
– In which eventually
– The property passes
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7. Gannon Dunkerly’s case (SC) 1958 (9 STC 353)
• In Construction Contracts
– There is an agreement
– Contractor should construct the building
– Receive payment
– Neither a contract to sell the materials, nor does the property pass
therein as moveable
• In Present Case
– Building Contract is
• One, entire and indivisible
– There is no Sales of goods
– State Legislature not competent to levy sales tax
– To levy tax on indivisible works contracts
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8. Law Commission
• Centre has the power to tax under Entry 97
• 3 Alternatives Suggested
– Amend Entry 54 in the State List
– Adding a fresh entry in the State List
– Insert in article 366 a wide meaning of “Sale”
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9. 46TH Constitutional Amendment
• Nullified Gannon Dunkerley’s case
• Indivisible contract can be divisible into two
– Sale of goods
– Supply of labour and services
• 46th Constitutional Amendment
– 366(29A) : Deemed Sales
• 2nd February, 1983
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10. 46TH Constitutional Amendment
• Article 366 in The Constitution Of India 1949
• Definitions.—In this Constitution, unless the context otherwise requires,
the following expressions have the meanings hereby respectively assigned
to them
• …
• (12) “goods” includes all materials, commodities, and articles…
• (29A) tax on the sale or purchase of goods includes
• (a) a tax on the transfer, otherwise than in pursuance of a contact, of
property in any goods for cash, deferred payment or other valuable
consideration;
• (b) a tax on the transfer of property in goods (whether as goods or in
some other form) involved in the execution of a works contract;
• (c) a tax on the delivery of goods on hire purchase or any system of
payment by instalments;
• (d) a tax on the transfer of the right to use any goods for any purpose
(whether or not for a specified period) for cash, deferred payment or
other valuable consideration;
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11. 46TH Constitutional Amendment
• Article 366 in The Constitution Of India 1949
• Definitions.—In this Constitution, unless the context otherwise requires,
the following expressions have the meanings hereby respectively assigned
to them
• …
• (e) a tax on the supply of goods by any unincorporated association or body
of persons to a member thereof for cash, deferred payment or other
valuable consideration;
• (f) a tax on the supply, by way of or as part of any service or in any other
manner whatsoever, of goods, being food or any other article for human
consumption or any drink (whether or not intoxicating), where such
supply or service, is for cash, deferred payment or other valuable
consideration,
• and such transfer, delivery or supply of any goods shall be deemed to be a
sale of those goods by the person making the transfer, delivery or supply
and a purchase of those goods by the person to whom such transfer,
delivery or supply is made;
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12. What is Works Contract?
• Basic tenets
– Only in case of indivisible contract
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Concepts Meaning Examples
Accretion Movables getting embedded
to immovable goods
Tiling of floor, walls
Accession Movable goods getting
attached to movable goods
Stitching of clothes
Blending Movable goods getting mixed
with goods of Contractee
Dyeing or printing

13. L & T decision (SC) dated 26th September, 2013
• For sustaining the levy of tax on the goods deemed to have
been sold in execution of a works contract
– there must be a works contract
– the goods should have been involved in the execution of a works
contract
– the property in those goods must be transferred to a third party
either as goods or in some other form
• Where a contract comprises of both a works contract and a
transfer of immovable property, such contract does not
denude it of its character as works contract.
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14. L & T decision (SC) dated 26th September, 2013
• The term “works contract” in Article 366 (29- A)(b) takes
within its fold all genre of works contract and is not restricted
to one specie of contract to provide for labour and services
alone
• Building contracts are species of the works contract.
• The dominant nature test has no application and the
traditional decisions which have held that the substance of
the contract must be seen have lost their significance where
transactions are of the nature contemplated in Article 366(29-
A).
• It is open to the States to levy sales tax on the materials used
in such contract
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15. L & T decision (SC) dated 26th September, 2013
• Deemed sale has all the incidents of the sale of goods
involved in the execution of a works contract
• Single and indivisible contract has been brought on par with a
contract containing two separate agreements
• Article 366(29-A)(b) serves to bring transactions where
essential ingredients of ‘sale’ defined in the Sale of Goods
Act, 1930 are absent within the ambit of sale or purchase for
the purposes of levy of sales tax
• Tax is permissible even after incorporation of goods provided
tax is directed to the value of goods and does not purport to
tax the transfer of immovable property
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16. L & T decision (SC) dated 26th September, 2013
• The activity of construction undertaken by the developer
would be works contract only from the stage the developer
enters into a contract with the flat purchaser
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17. Kone Elevators (SC) dated 6th May, 2014
• Manufacturing, supply and installation of lift
– Sales or Works Contract
• Majority View
– Dominant nature test not applicable
– Composite Contract (labour and service element is obvious)
• Purchase
• Installation
– Requires considerable Skills
– Place Order
• Lifts
• Preparatory Work
– How the lift is working
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18. Kone Elevators (SC) dated 6th May, 2014
• Nature of Contract
– Supply of goods
– Installation
• Labour and service is involved
• Transfer
– Either in goods or some other form
• If there are two contracts
– Purchase of components of lift
• Sale
– Installation
• Labour and service
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19. Kone Elevators (SC) dated 6th May, 2014
• If composite contract
– Works Contract
• Supply and installation
– Not sale of goods
• Chattel not sold as chattel
• Chattel is being attached to another chattel
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20. Kone Elevators (SC) dated 6th May, 2014
• Minority View
• Unless a contract is
– proved to be a ‘Works contract’
– by virtue of the terms agreed as between the parties,
– invocation of Article 366(29A)(b) of the Constitution, cannot be made
• If terms of contract
– Disclose or lead to
– Definite conclusion
– That it is not a works contract
– But one of outright sale
– The same would be declared as ‘Sales’
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21. What is Works Contract?
• Bleaching process done on clothes – Is it a Works Contract?
– Matushree Textiles 2003 132 STC 539 (Bom.)
• We hold that the property of the materials such as chemicals, colours and dyes
used in the process of dyeing and printing are passed on to the fabrics of the
customer and, such passing of property of the materials is a deemed sale and
tax is leviable on such materials under the Works Contracts Act
• Maharashtra Mudran Parishad 2005 139 STC 193 (Bom.)
– It goes without saying that in each case the nature of the contract and
transaction has to be seen. This is possible only when the intention of the
parties that too dominant intention is found out. The fact that in the
execution of the contract for work some materials are used, and the
property/goods so used, passes to the other party, the contractor
undertaking to do the work will not necessarily be deemed, on that
account, to sell the materials. Whether or not and which part of the job-
work relates to that depends as mentioned hereinbefore, on the nature of
the transaction and what is the dominant intention has to be found in
each case in the light of its own facts.
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22. What is Works Contract?
• Doctor giving medicine to patient – Is it a Works Contract?
– Dr. Batra’s Positive Health Clinic Pvt. Ltd. 2013 TIOL 01 (Tri.-Bang.)
• Karnataka VAT – Dispensing of medicines by doctors not sale; no tax: the
transactions effected by the appellant so far as dispensation of medicine
is not a transaction of sale: As held in BSNL case, the dominant nature
being rendering of medical services, the transaction cannot be split into
service and goods components. The transactions in question does not fit
under any of the subclauses of Article 366 (29A). By applying the
dominant nature test as well as the transaction nature it is decided that
the dispensing of medicine by the doctors during the course of
integrated package treatment cannot be considered as sale for the
purpose of the Act
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23. Works contract
• Divisible and non-divisible works contract:
– Features
– implications
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24. DEFINITIONS
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25. Definitions - MVAT
• Explanation to Section 2 (24) – “Sale”
• (b)(ii) –
– the transfer of property in goods
– (whether as goods or in some other form)
– involved in the execution of a works contract
– including,
• an agreement for carrying out for cash,
• deferred payment or
• other valuable consideration,
• the building, construction, manufacture, processing, fabrication, erection,
installation, fitting out, improvement, modification, repair or
commissioning of any movable or immovable property
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26. Analysis of the definition - MVAT
• Transfer in property in goods
• 2(24) of the MVAT ACT, 2002
• "goods" means every kind of movable property
– not being
• newspapers,
• actionable claims,
• money, stocks,
• shares,
• securities or
• lotteries and
– includes growing crop, grass and tree and plants including the produce
thereof
– including property in such goods attached to or forming part of the
land which are agreed to be severed before sale or under the contract
of sale
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27. Analysis of the definition - MVAT
• Transfer of property in Goods
• Involved in a execution of a works contract
• Including
– An agreement for carrying out for consideration
– Building erection
– Construction installation
– Manufacture fitting out
– Processing improvement
– Fabrication Commissioning
– repair modification
Of any movable or immovable property
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28. Service tax
• K. Raheja’s case- implications
• VAT and Service tax
• Provisions of Service tax law
– 2 options
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29. Definitions - Service tax before 1.7.2012
• Commercial or industrial construction services – Section 65
(105) (zzq)
• Construction of residential complexes – Section 65 (105)
(zzzh)
• Works Contract – Section 65 (105) (zzzza)
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30. Definitions – Service Tax post 1.7.2012
• Section 65B (44):
– “Service” means
• any activity
• carried out by a person
• for another
• for consideration
And includes:
– A declared service
But shall not include:
– Transfer of title in goods/immovable property
– Deemed sales within the meaning of Article 366 (29A) of the
Constitution
– Transaction in money/actionable claim
– Employment
– Court/ tribunal
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31. Definitions – Service Tax post 1.7.2012
• 66E (h) – “service portion in execution of works contract”
• 65B(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;
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32. Declared Service
Section 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
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33. Definitions – Service tax
“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:––
– architect registered with the Council of Architecture constituted under
the Architects Act, 1972 or
– chartered engineer registered with the Institution of Engineers (India); or
– licensed surveyor of the respective local body of the city or town or village
or development or planning authority;
• "construction" includes additions, alterations, replacements or
remodelling of any existing civil structure
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34. Interstate Works Contract
• CST Act amended w.e.f. 11.05.2002
• Inter state CST came into effect
• CST- elevance of movement of goods
• No notional abatement
• No composition
• Tax on material value
• Examples of Inter State Works Contract
– Civil contractor of Mumbai supplies goods to site in Surat for building
construction
– Textile manufacturer of Dadra sends goods to Vapi for dyeing and gets
it back
– C form possible
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35. VALUATION
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36. Valuation - MVAT
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Payment of
MVAT
Actual deduction
Method
Notional
deduction
Method
Composition
Method

37. Actual Deduction Method
Rule 58 (1)
• Entire Value of Works Contract
Less:-
• Labour & Service charges for the execution of works
• Amounts paid by way of price for sub-contract, if any to sub- contractors;
• Charges for planning, designing, & architect`s fees
• Charges for obtaining on hire or otherwise, machinery & tools for the
execution of the works contract
• Cost of consumables such as water, electricity, fuel used in the execution of
the contract, the property in which is not transferred in the course of
execution of the works contract
• Cost of establishment of the contractor to the extent to which it is relatable to
supply of the said labour & services
• other similar expenses relatable to the said supply of labour & services, where
the labour and services are subsequent to the said transfer of property
• Profit earned by the contractor to the extent it is relatable to the supply of
labour & services.
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38. Actual Deduction Method
• If Contractor has not maintained accounts
– Cannot enable proper deduction
Or
• Commissioner
– Accounts maintained by contractor
– Are not sufficiently clear or intelligible
• Provide Lump Sum Deduction
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39. Notional Deduction Method….
Sr. No. Types of works contract Abatement allowed %
1 Installation of plant and machinery 15%
2 Installation of air conditioners and air coolers 10%
3 Installation of elevators/escalators 15%
4 Fixing of marble slabs/granite/tiles 25%
5 Construction of building, bridges, roads, etc. 30%
6 Construction of railway coaches 30%
7 Ship and boat building 20%
8 Fixing of sanitary fittings 15%
9 Painting and polishing 20%
10 Construction of bodies of motor vehicles 20%
11 Laying of pipes 20%
12 Tyre retreading 40%
13 Dyeing and Printing of Textiles 40%
14 AMC 40%
15 Any other Works Contract 25%
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40. Notional Deduction Method
• Note:
• Percentage to be applied
– After Deducting from the Total Contract Price
• Cost of Land as determined u/r 58(1A)
• Quantum of price on which tax is paid by the sub-contractor
• Quantum of tax separately charged by the contractor
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41. Rule 58(1A)
• Construction Contracts
– Along with immovable property
– Interest in Land
– Property in goods also transferred
• Value of goods at the time of transfer
• Shall be calculated
• After deduction of cost of land
• From the total agreement value
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42. Rule 58(1A)
• Cost of Land
– Bombay Stamp Rules (Determination of True Market Value of
Property), 1995
– As applicable on 1st January
– In which agreement to sell the property is registered
• After payment of tax as determined
– Open to the dealer to prove before Dept. of Town Planning and
Valuation
– Cost of land is higher as determined
– Excess tax paid
• Refunded
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43. Rule 58(1B)
• Construction Contracts
– Along with immovable property
– Interest in Land
– Property in goods also transferred
• After deduction under
– Sub-rule (1)
– Sub-rule (1A)
• From Total Contract Price
• Value of goods involved in the works contract
• Determined after applying the percentage
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44. Rule 58(1B)
Sr. No. Stage during which the developer enters into a
contract with the purchaser
Amount to be determined
as value of goods involved
in Works Contract
(a) Before issuance of Commencement Certificate 100%
(b) From the Commencement Certificate to the
completion of plinth level
95%
(c) After the completion of plinth level to the
completion of 100% of RCC framework
85%
(d) After completion of 100% RCC framework to
the Occupancy Certificate
55%
(e) After the Occupancy Certificate NIL
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45. Rule 58(1B)
• For determining value of goods as per Table
• Necessary for dealer to furnish
• Certificate
– Local or Planning Authority
– Certifying date of completion of stages
• If such authority does not have such procedure
– Certificate from registered RCC Consultant
• If dealer fails to establish
– Entire value of goods after deduction under sub-rule (1) and (1A)
– Taxable
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46. Composition Method
• Section 42 (3)
– 5% - construction contract
– 8% - other works contract
– Reduction in set off – Rule 53
• After deduction of value sub contracted
• 1% in case of
– Construction of flats, dwellings, buildings, premises
– Transferred in persuasion of an agreement
– Along with the land or interest underlying the land
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47. Selection of the best option
Relevant factors
• Component mix
– Labour vs. Material
– 5% vs 12.5%
• Composition rate
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48. Valuation – Service Tax
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Payment of
Service Tax
WC-Actual
deduction
Method
WC-Notional
deduction
Method
Construction -
Abatement

49. Rule 2A of Service Tax (Determination of Value) Rules, 2006
Valuation of Works Contract
OPTION-I
• Service Portion = GAC (-) Value of property in goods transferred
• Gross Amount Charged does not include – Sales Tax paid or payable
• Include
– labour charges for execution of the works
– amount paid to a sub-contractor for labour and services
– charges for planning, designing and architect’s fees
– charges for obtaining on hire or otherwise, machinery and tools used for
the execution of the works contract
– cost of consumables such as water, electricity, fuel used in the execution
of the works contract
– cost of establishment of the contractor relatable to supply of labour and
services
– other similar expenses relatable to supply of labour and services
– profit earned by the service provider relatable to supply of labour and
services
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50. Rule 2A of Service Tax (Determination of Value) Rules, 2006
Valuation of Works Contract
• Where Sales tax is paid or payable
– On value of property in goods transferred
• Such value adopted for purposes for payment of Sales Tax
• Shall be taken a value of property in goods transferred
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51. Rule 2A of Service Tax (Determination of Value) Rules, 2006
Valuation of Works Contract
• OPTION-II
– Standard Percentage
– No Cenvat on Inputs
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Types of Works Contact % of the total
amount charged
Original works 40%
Other Works Contract including Maintenance
or repair or reconditioning or restoration or
servicing of any goods or maintenance,
repair, completion and finishing services such
as glazing, plastering, floor and wall tiling,
installation of electrical fittings of an
immovable property
70%

52. Rule 2A of Service Tax (Determination of Value) Rules, 2006
Valuation of Works Contract
Explanation 1. - For the purposes of this rule,-
(a) “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;
(b) “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 :
Provided that the fair market value of goods and services so supplied may be
determined in accordance with the generally accepted accounting principles
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53. 2 different methods under 2 statues
VAT Service Tax
Actual Deduction Method • Actual Deduction Method only
• Other method not permissible
Notional Deduction Method • Notional Deduction Method only
• Other method not permissible
Composition Scheme • Actual Deduction Method or
Notional Deduction Method
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54. Abatements
Sl. No. Description of taxable service Percent-
age
Conditions
12. 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,-
(a) for a residential unit satisfying
both the following conditions,
namely:–
(i) the carpet area of the unit is less
than 2000 square feet; and
(ii) the amount charged for the unit
is less than rupees one crore;
(b) for other than the (a) above
25
30
(i) CENVAT credit on inputs
used for providing the
taxable service has not been
taken under the provisions
of the CENVAT Credit Rules,
2004;
(ii) The value of land is
included in the amount
charged from the service
Receiver
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55. WCT TDS
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TDS
Income tax
192, 194, 194C, etc.
Works contract
Section 31,
Rule 40

56. WCT TDS
• Person responsible for payment exceeding Rupees 5 lakhs (per
contractor) for works contract is responsible for deduction of tax at
prescribed rates
• TDS Rate : 2% in case of registered contractor and 5% in case of un
registered contractors
• No TDS on service tax and sales tax separately charged by the
contractor
• TDS should not exceed tax payable by such contractor
• No WCT TDS on interstate transactions
• In relation to advance payments, the TDS will apply when the
advance payment is adjusted towards the actual amount payable
to the contractor
• TDS payment-challan 210,with in 21 days from the end of the
month in which TDS is deducted, Annual TDS return in form no.
405,TDS certificate to be issued in form no.402
• Record in form no. 404
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57. Reverse Charge- Service tax
Nature of Service Provider Recipient Comments
Works contract 50% 50% Method of
valuation can be
chosen by the
Service recipient
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58. EXEMPTION UNDER SERVICE TAX
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59. Service tax Exemptions
Exemptions (25/12)
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 -
– A civil structure meant predominantly for a non-industrial or non-commercial use;
– historical monument, archaeological site, etc
– a structure meant predominantly for use as
• an educational
• a clinical
• an art or cultural establishment
– Canal, dam or other irrigation works
– Pipeline, conduit or plant for
• drinking water supply
• water treatment
• sewerage treatment or disposal;
– 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
65 B of the said Finance Act; (members of Parliament etc.)
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60. Service tax Exemptions
…Exemptions…
• Services provided by way of construction, erection,
commissioning, installation, completion, fitting out, repair,
maintenance, renovation, or alteration of:
– road, bridge, tunnel, or terminal for road transportation
• for use by general public
– building owned by an entity registered under section 12 AA
• and meant predominantly for religious use by general public;
– pollution control or effluent treatment plant
• except located as a part of a factory
– electric crematorium
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61. Service tax Exemptions
…Exemptions
• Services by way of construction, erection, commissioning, or
installation of original works pertaining to,-
– airport, port or railways, including monorail or metro
– single residential unit otherwise as a part of a residential complex;
– low- cost houses up to a carpet area of 60 square metres per
– post- harvest storage infrastructure for agricultural produce including
a cold storages for such purposes; or
– mechanised food grain handling system, machinery or equipment for
units processing agricultural produce as food stuff excluding alcoholic
beverages
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62. Ca. Payal Shah
Associate at
2/22 Nityanand Nagar, Sahar Road, Andheri (East),
Mumbai-400 069.
capayalshah9@gmail.com
Right advice at right time…
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