TMI Blog2020 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13 (2) (b) of GST Act, time of supply will be date of provision of service, if the invoice is not issued within the prescribed period. So this is not the activity being undertaken or proposed to be undertaken after the appointee day - there is no upward revision of any prices, as claimed by applicant. The contention of applicant is therefore not accepted - questions posed by applicant are non-maintainable under the provision or Section 95 of the GST Act. The second question raised by the applicant is to clarify the rate of GST if the ruling on question no. 1 is in the affirmative - Since the question no.1 is out of the purview of this Authority, we do not take up the second question for discussion at all and would not answer the same. Levy of GST - Proposed reimbursement of ₹ 1,92,50,247/- from M/s Oil Natural Gas Corporation Ltd., toward operational site expenses and claim toward rectification of water damages, pertaining to original civil interior work contract awarded by M/s. Oil Natural Gas Corporation Ltd. - Applicable rate of GST - HELD THAT:- Even in the subject case where the invoice is not issued by the applicant, the work was already undertaken and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in undertaking and execution of interior works and other works. M/s Oil Natural Gas Corporation Ltd. (ONGC) has, vide Order No. MR/PO/4BP/BK/52 2013 dated 01/10/2013 awarded contract of civil interior works of Green Building, Plot No C-69, Bandra-Kurla Complex, Mumbai 400-051, to the applicant for value of ₹ 57,45,18,007/- which was further revised to ₹ 60,74,89,569/- and period of completion of work was 6 months 6 days from notification of award. Since work could not be completed within stipulated period, period was extended up to 31/01/2016, with application of liquidated damages clause. 2.2 Thereafter, Applicant issued R.A. Bill No 22 and issued corresponding Tax Invoice No 001 on 25/06/2018 for ₹ 2,42,09,594/- and charged thereon CGST MGST @ 9% at ₹ 21,78,863/- ₹ 21,78,863/- respectively, with total amount of ₹ 2,85,67,321/-. ONGC made payment on 03/07/2018 but disputed the collection of CGST MGST. Applicant accounted the said tax invoice in the books of accounts, paid CGST MGST and accordingly filed the return for the month of June-2018. 2.3 After issue of impugned final R.A. Bill No 22, question arose as to, for whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al summary of above bill as certified by M/s. Oil Natural Gas Corporation Ltd. Supply amount ₹ 2,43,83,448/- Installation amount ₹ 37,26,285/- Service Tax ₹ 4,57,588/- Total ₹ 2,85,67,321/- 2.8 (c) Calculation of GST to be recovered from ONGC is as under: Total GST as per Tax invoice ₹ 43,57,727/- Less Amt. received by way of Service Tax ₹ 4,57,588/- Balance GST payable from M/S ONGC ₹ 39,00,139/- 2.9 As regard GST claim of ₹ 39,00,139/- of the applicant, O.E.C. in its report observed that; The contractor has made claim toward GST of ₹ 39,00,139/- being GST on Final Bill No.22 submitted on 22/6/2018. The claim arose on account of payment of GST by the contractor in the month of June-2018 while raising their final bill No 22 for work carried out in the year 2016, before the introduction of GST from 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks contract supply is deemed as supply of services in view of Schedule II (6(a)) of CGST Act and therefore provision Section 13 of CGST Act, regarding time of supply would be applicable. Section 13 of CGST Act: Time of supply of services: (1) The liability to pay tax on services shall arise at the time of supply; as determined in accordance with the provision of this section. (2) The time of supply of service shall be the earliest of the following dates namely: (a) the date of issue of invoice by, the supplier, if the invoice is issued within the period prescribed under Section 31 or the date of receipt of payment, whichever is earlier, or (b) the date of provision of service, if the invoice is not issued within the period prescribed under section 31 or the date of receipt of payment, whichever is earlier, or (c) date on which the recipient shows the receipt of services in his books of account, in a case where the provisions of clause (a) or clause(b) do not apply; Provided that where the supplier of taxable services received an amount up to one thousand rupees in excess of the amount indicated in the tax invoice, the time of supply to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then it shall be treated as outward supply by registered person under CGST Act and such person ski! issue supplementary invoice or debit note within thirty days from date of such price revision. In present case, as a result of O.E.C. report. dated 21/05/2019, there would be upward price revision in the ongoing contract and outward supply to the extent of such enhanced price and therefore, it should liable to tax under GST Act. Th applicant has not yet issued supplementary invoice or debit note, however considering mandatory time limit for issued of such invoice, will issue such invoices within 30 days of O.E.C. report. 2.16 Applicant has completed work awarded by ONGC of mainly interior and civil work to some extent. As per explanation note to scheme of classification of services under GST Act, it would be covered under Tariff- 995478 - other building completion and finishing services and CGST MGST would be applicable @ 9% each. 2.17 The applicant has made further submissions on 13.02.2020 as under:- 2.17.1 There is no doubt that the work / supply is done and executed prior to 01/07/2017, but the Bill for deviation work is raised GST era and as per GST provision section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is observed that M/s Woodkraft India Ltd was holding registration under MVAT Act and Service Tax Law in pre-GST period and is also currently registered under GST Act. The applicant had undertaken the work of civil and interior in respect of M/s. Oil Natural Gas Corporation Ltd. Issued to them vide order No. MR/PO/4BP/BK/52 2013 dated 01/10/2013. This work was completed upto 31/01/2016 i.e. during pre-GST period. The tax invoice (R.A. Bill No. 22) in respect of this completed work was raised by applicant on 25.06.2018 i.e. during GST period along with levy of GST @ 18% whereas as per the provisions of Under Rule 4A of the erstwhile Service Tax Rules, 1994, it was compulsory for a service tax assessee to issue a bill or invoice within 14 days from the date on which the taxable service was completed or the date on which the payment was received for the service, whichever came first. Applicant has contended that, the said invoice is pertaining to upward revision in price and therefore in view of Section 142(2) (a) of CGST Act, it is outward supply under GST law and liable to tax under CGST MGST Act, Section 142(2) (a) of CGST Act provides that in respect of on-going contract, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in section 13, no tax shall be payable on services under this Act to the extent the tax was leviable on the said services under Chapter V of the Finance Act, 1994; 5.5 We observe that Section 142(10) allows the levy tax on goods or services under GST Act, that are supplied only after appointed day i.e. 01/07/2017: In respect of RA Bill No. 22, (issue in the first two questions raised by the applicant), the applicant has carried out and completed the total work before the appointed day and only billing is done after the appointed day and that too after a two year period. The applicant relies on the provisions of time of supply under Section 13 of GST Act. However, even as per the provisions under Section 13 (2) (b) of GST Act, time of supply will be date of provision of service, if the invoice is not issued within the prescribed period. So this is not the activity being undertaken or proposed to be undertaken after the appointee day. 5.6 Further, the applicant has referred to the provisions under Section 142 (2)(a) and submitted that the provisions under this Section allows the applicant to raise question on above issue under advance ruling provisions under the GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 142(2) (a) of CGST Act, it is outward supply under GST law and liable to tax under CGST MGST Act. 5.6.3 The documents submitted by the applicant as well as the oral submissions made, do not show that the said invoice has been raised in pursuance of increase in contract value. Further, from the submissions made by the applicant we find that in respect of additional claim of ₹ 1,92,50,247/-, the services of site expenses rectification of water damages was undertaken by the applicant and completed during the service tax regime. These services of site expenses rectification of water damages are in the nature of additional work entrusted to the applicant, claim against which was disputed by ONGC and on mediation by the O.E.C., the said amount has been said to be payable to the applicant. This amount does not appear to be paid to the applicant in lieu of increase in the value of the original contract. In fact, payment of this amount was being contested by ONGC only because they thought that the said damages had occurred during the course of performance of the contract by the applicant which was to be rectified by way of providing services of site expenses recti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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