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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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Publish Date: 26 Mar, 2012
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Budget 2012- Reconstructing Construction Industry

Budget, 2012 – Reconstructing the Construction Industry

Prepared By:
CA Pradeep Jain
CA Preeti Parihar

Introduction:-
 
Service tax on Reality sector is once again a talk of the town after announcement of Budget, 2012. This budget has proposed the implementation of service tax by negative list wherein all the services except those specifically excluded will be taxable. The proposal contained in the budget seems to redefine the service tax applicability on the construction contracts. This piece of depiction is all about building the service tax on reality sector.
 
Pre budget scene:-
 
Prior to announcement of budget, three categories were meant for the construction industry –
 
· Commercial or industrial construction service,
· Works Contract service, and
· Construction of residential complex service.
 
Service tax was levied under the above three categories in respect of construction of various small and large buildings, by whatever named called. Under Commercial or industrial construction service, construction of a new building or part thereof was taxable provided the building or part is used or intended to be used for commerce or industry. Under works contract, service was leviable if the contract was for providing both the material and services. Service tax under this head was applicable if the material involved in the works contract was leviable to service tax. The construction of residential houses was chargeable to service tax under the category of Construction of residential complex service. Every head had its own benefits for eg. abatement at specified rates was allowed in case of Commercial or industrial construction service, composition scheme was applicable in case of works contract and in case of Construction of residential complex service, exemption was being granted to the construction of upto 12 residential complexes. Thus, all the schemes had their own benefits.
 
Post Budget scene:-
 
The budget, 2012 has proposed the service tax by negative list. The services specified in the negative list are specifically excluded from the purview of service tax. The negative list primarily contains the services of public utility. So far as construction industry is concerned, it contain the construction services pertaining to road, bridge, tunnel, terminal, pollution control or effluent treatment plant, etc. subject to certain conditions. These exemptions in the old scheme were provided by way of giving the exclusion clause in the definition of the respective services. Besides the services of public utility, Services by way of erection or construction of original works pertaining to airport, port or railways, single residential unit otherwise as a part of a residential complex, low- cost houses by approved authority up to a specified area, or in relation to a housing project are also excluded. Further, valuation rules, abatement scheme and reverse charge method have also been amended having major impact on the reality sector.
 
Analysis of Pre/Post Budget scenario:-
 
· Only works contract scheme survives- Prior to budget, there were three specified services of treating various types of construction projects. However, after budget, there seems to be only one category which is included in the declared list of activities specified in Section 66E. This section includes the “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 certificate of completion by the competent authority”. Thus, in this clause, the entire construction industry has been covered and the description of this service gives insight of the works contract service. This fact also gets favour from the fact that the Service tax (Determination of value of services) Rules, 2006 have been amended and rule 2A has been substituted which describes the manner of valuing the works contract service. Further, no abatement has been proposed for any other service under the new notification no. 13/2012-ST dated 17.3.2012. Also, the reverse charge method has been extended to the works contract scheme under notification no. 15/2012-ST dated 17.3.2012. All these factors clearly indicate that all the other services pertaining to the construction industry have been scrapped and only works contract survives.
 
· Construction on behalf of buyer covered - The inclusion of works contract in the declared list of services with the description “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 certificate of completion by the competent authority” clarifies the fact that where the owner of the land undertakes the construction for the prospective buyer for a consideration whether or not received in piecemeal will be covered under works contract. This is simply clarifying the things that were already inbuilt in the works contract scheme prior to budget. At the time of Budget, 2010; when the explanation was added in the definitions of Construction of residential complex service and Commercial or industrial construction service wherein it was clarified that these two heads will be applicable even if the payment is received in installments and the possession or ownership is transferred at the end. At that time since no such explanation was added to the works contract service, it was contended by a class of learned scholars that it is merely a mistake and it will be rectified soon. We, the authors of this article were on the other side who were of the opinion that there was no need of such explanation as the same thing in the case of works contract was already settled by the decision of Apex Court in the case of Raheja Development Corporation V. State Of Karnataka [2005 Ntc (Vol. 27)-243]. In this decision it was held that even if the payment is made in installments, then also, the transaction would fall in the category of the works contract. Our articles on the even issue were published on the prestigious website taxindiaonline.com. Thus, our clear and distinct view has now been specifically proven by the recent budget wherein it is specifically provided that the works contract would be applicable even if the construction is taken on behalf of prospective buyers who pay the consideration in installments.  
 
· Exemption to one residential unit only- Under negative list exemption has been granted to the Services provided by way of erection or construction of original works pertaining to single residential unit otherwise as a part of a residential complex. Thus, single residential unit has been exempted which has narrowed the scope of exemption previously contained in the Construction of residential complex service. In this service, construction of upto 12 residential units was exempted in the definition itself. But the proposed scheme exempts only one residential unit, that too pertaining to original works. Here the original works is defined as new constructions or additions and alterations to abandoned or damaged structures on land that are required to make them workable. Thus, where the construction pertains to old building that is not substantially damaged, it would not be exempted. Also, the cases where finishing work is undertaken will not be covered. Here ambiguity arises in what context the word “single residential unit” is used. Whether the single residential unit is to be checked assessee-wise or place wise or period wise. This has not been clarified and may lead to litigation. Thus, the exemption of 12 residential units has been reduced drastically to only one residential unit.
 
· Amendments in works contract scheme- Under proposed scheme, only works contract has found a place, that too with a no. of amendments therein relating to the valuation and other aspects. We have also written an article on the budget implications on the works contract scheme. The key amendments in the works contract scheme are as follows:-
 
- The rate of works contract is increased from 4% to 4.8%, w.e.f. 1.4.2012.
- The reverse charge method has been extended to the works contract scheme wherein 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.
- New rule 2A is being substituted in the Service Tax (Determination of Value) Rules, 2006 which prescribes the manner of determining the taxable value under works contract.
- The optional composition scheme of works contract is proposed to be withdrawn. Instead, actual value of material supplied is required to be ascertained for the purpose of determining the taxable value. Where such ascertainment is not possible, then only abatement at a fixed percentage is allowed.
 
While parting:-
 
The recent budget has brought more costs and low benefits to the reality sector. The options have been scrapped. The scope of exemptions has been narrowed. The entire construction industry is now left with only one option – Works contract, that too with increased complexities. Let’s see how does the man with no alternative reacts in this entirely new scenario. 

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