2019 (11) TMI 1453 - AAAR - GST

Works Contract or not - execution of Additional Air-conditioning work for the New building of Director of Education at Porvorim, Goa - Sr. No. 3 item no 3 of notification no. 20/2017(Central tax rate) dated 22/08/2017 - Composite supply or not - principal goods involved is Air Conditioner which falls to cover under schedule IV, Sr. No 119 of notification No. 1/2017 (Central tax rate) dated 28/06/2017 - Challenge to AAR decision. HELD THAT - The fixation of the air conditioner units along with the pipes, though it is undoubtedly a fixture, is for the beneficial enjoyment of the units and in order to use them for cooling, it has to be attached to the ceiling. The attachment, in such a case, does not make the air conditioning units a part of the land and as immovable property - the contract submitted is not immoveable property. Also, it is seen that the major part of the contract is supply of goods i.e. VRF Indoor and outdoor units, refrigerant piping, drain piping with insulation, MS parts, cabling etc. The appellant delivers these goods to the site of the client and using these goods the appellant provides services of installation, testing and commissioning of the system. Both the supply of goods and services are dependent on each other and are naturally bundled and done in the course of the business. The AAR has also concluded that this is a composite supply and the principal supply is of goods in the instant case. We agree with the same. The supply of goods and services are conjoint to each other and inter dependent. Moreover, it is an established practice to supply air conditioner units and also provide the installation and therefore it can be construed as naturally bundled and therefore a composite supply, where, needless to say the principal supply is that of goods, which is the air conditioner units. Air Conditioners units fall under Chapter 8415 and are taxable @ 28% and are covered under Schedule IV, Sr no 119 of notification No 1/2017 (CV.T rate) dated 28/06/2017. Hence the principal supply in the composite supply being goods, the appellant is liable to pay GST @ 28% on the whole contract. The contract in the impugned case is though a composite supply not for immoveable property, and therefore does not fall under the definition of works contract . The principal supply in the case is of Air conditioning units and the entire contract is taxable @ 28% - the order of the Advance Ruling Authority on both the questions upheld.

Summary

Issues Involved:
1. Classification of the transaction as a "works contract" or a "composite supply."
2. Determination of the applicable tax rate under CGST/SGST/IGST.

Detailed Analysis:

1. Classification of the Transaction:
The primary issue revolves around whether the transaction qualifies as a "works contract" or a "composite supply." The appellant, M/s Nikhil Comforts, entered into an agreement with Goa State Infrastructure Development Corporation Ltd. (GSIDC) for the supply, installation, testing, and commissioning of a VRF air conditioning system. The appellant argued that the contract should be classified as a "works contract" under Section 2(119) of the CGST Act, which defines a works contract as a contract for building, construction, fabrication, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration, or commissioning of any immovable property.

The appellant contended that the air conditioning system, once installed, becomes immovable property because it cannot be shifted without dismantling. They emphasized that the system involves various components such as VRF units, copper piping, and electrical works, which are assembled and installed at the site, making it immovable.

However, the appellate authority disagreed, stating that the installation of air conditioning units does not change the essential nature of the work, which remains the installation of air conditioners. The authority cited the Supreme Court judgment in Sirpur Paper Mills Ltd. vs. The Collector of Central Excise, where it was held that machinery fixed to a concrete base for operational efficiency does not become immovable property. The authority also referred to the judgment in Commissioner of Central Excise, Ahmedabad v. Solid and Correct Engineering Works, which established that if machinery can be dismantled and reassembled at another location, it is not immovable property.

2. Determination of the Applicable Tax Rate:
The second issue concerns the applicable tax rate. The appellant argued that the contract should be taxed as a "works contract" under Sr. No. 3, Item No. 3 of Notification No. 20/2017 (Central Tax Rate) dated 22.08.2017. However, the appellate authority upheld the AAR's ruling that the transaction is a "composite supply" where the principal supply is of goods, specifically air conditioning units.

The authority noted that the contract's major component is the supply of goods (VRF Indoor and Outdoor units, refrigerant piping, etc.), and the services of installation, testing, and commissioning are ancillary. Both the supply of goods and services are naturally bundled and done in the course of business, making it a composite supply. The principal supply being goods, the entire contract is taxable at the rate applicable to air conditioning units, which is 28% under Schedule IV, Sr. No. 119 of Notification No. 1/2017 (Central Tax Rate) dated 28.06.2017.

Conclusion:
The appellate authority concluded that the contract is not for immovable property and does not fall under the definition of a "works contract." Instead, it is a composite supply with the principal supply being air conditioning units. Consequently, the entire contract is taxable at 28%.

Order:
The appellate authority upheld the order of the Advance Ruling Authority, confirming that the transaction is a composite supply with the principal supply being goods (air conditioning units) and taxable at 28%.