2021 (4) TMI 880 - AAR - GST

Classification of services - Rate of GST - works contract services to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai - Sl.No.3 item (vi) of the N/N.11/2017-Central Tax (Rate) dated 28.06.2017 as amended - HELD THAT - As per the scope of the contract it is seen that the work covered in the contract envisages detailed engineering, soil investigation and testing, preparation of design, drawing submission to TANGEDCO for the approval and carrying out execution of foundation, structure, superstructure works for retrofitting strengthening of structural members of NPKRR Maaligai against seismic, wind effect and modification of elevation of NPKRR Maaligai in TNEB Headquarters Complex including provision of glass cladding and aluminium composite panel works including all civil works viz. pile foundation, pile cap, columns, walls, beams, slab, shear wall etc. by supplying the goods involved and the related services, thereby is a composite supply of works contract. Further the works entrusted involves construction, fitting out, improvement etc of NPKRR Maaligai, the immovable property and there exists transfer of property in goods in the execution of the work. Therefore, it is observed that the works undertaken by the applicant are Works contract service as per Section 2 (119) of CGST Act 2017 and the supply is a composite supply, thereby condition at 8.1 (a) above is satisfied. Government entity or not - HELD THAT - TANGEDCO is a Public Limited Company established by Government of Tamilnadu with more than 90 percent control for the purposes of generation and distribution of electricity. Hence, TANGEDCO Ltd is a Government Entity. It is further pertinent to note that the Authority for Advance Ruling in the case of Tamil Nadu Generation and Distribution Corporation Limited vide TN/ 14/AAR/2020 dt. 20.04.2020 has viewed that TANGEDCO is a Government Entity. As per the definition of Business, any trade, commerce or similar activity whether or not it is for pecuniary benefit itself is termed as business. TANGEDCO is involved in generation and distribution of electricity for which revenue is collected for the Energy consumed by the consumers. Revenue collection is based on tariff charged to different category of consumers. TANGEDCO as a state generation and distribution utility and deemed licensee is dependent on the collection of revenue for its operation, maintenance investigation for future growth. It is evident from the above facts that TANGEDCO is involved in the business of selling electricity to the consumers and collecting charges from them which is their predominant activity - the supply of works contract services as per the applicant s contract cannot be considered as that meant predominantly for use other than for commerce, industry, or any other business or professional purposes. Rate of GST - HELD THAT - The SAC for the Construction Service is SAC 9954 and the applicable rates to the various types of construction service are given under S1.No.3 of Notification No. 11/2017-C.T.(Rate) as amended - The rate of GST to be charged on the services provided by the applicant to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai is 18% as per SL.No.3(xii) of Notification 11/2017 CT(Rate) dated 28.06.2017 as amended .

Summary

Issues Involved:
1. Rate of GST to be charged on providing works contract services to TANGEDCO.
2. Applicability of entry in Sl.No.3 item (vi) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 to the applicant.

Issue-wise Detailed Analysis:

1. Rate of GST to be charged on providing works contract services to TANGEDCO:
The applicant sought a ruling on the applicable GST rate for retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai. The central jurisdictional authority contended that the services rendered by the applicant are liable to be taxed at 18% GST under SAC Heading 9954 as per Entry No.3 (ix) of Notification No.11/2017-Central Tax dated 28.06.2017. The authority concluded that the rate of GST to be charged on the services provided by the applicant to TANGEDCO is 18% (9% CGST + 9% SGST) as per Sl.No.3(xii) of Notification No. 11/2017 CT(Rate) dated 28.06.2017 as amended.

2. Applicability of entry in Sl.No.3 item (vi) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 to the applicant:
The applicant contended that TANGEDCO qualifies as a "Government Entity" and that the works contract services provided to it should attract a concessional GST rate of 12% as per entry Sl.No.3 item (vi) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. The authority examined the conditions required for the applicability of the said entry, which include:
a) The supply must be a composite supply of works contract as defined in clause 119 of Section 2 CGST Act, 2017.
b) The supplies must be provided to the Central Government, State Government, Union Territory, a local authority, a Governmental authority, or a Government entity.
c) The supply must be for construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession.
d) For supplies to a Government Entity, the supplies should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory, or local authority.

The authority concluded that while TANGEDCO qualifies as a "Government Entity," the works undertaken by the applicant are predominantly for commercial purposes as TANGEDCO is involved in the business of generation and distribution of electricity for which revenue is collected. Therefore, the supply of works contract services cannot be considered as meant predominantly for use other than for commerce, industry, or any other business or profession. Additionally, the work undertaken by the applicant is not related to the generation and distribution of electricity, which is the entrusted work of TANGEDCO. Thus, the entry in Sl.No.3 item (vi) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended is not applicable to the applicant in this case.

Ruling:
1. The rate of GST to be charged on the services provided by the applicant to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai is 18% (9% CGST + 9% SGST) as per Sl.No.3(xii) of Notification No. 11/2017 CT(Rate) dated 28.06.2017 as amended.
2. The entry in Sl.No.3 item (vi) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended is not applicable to the applicant in the instant case.