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What is input tax credit?
Input tax credit means credit of the input tax. It could be claimed of any goods and services intended to be used in the course of business, subject to the conditions mentioned in section 16(2) are fulfilled.
AAR (Maharashtra) in case of M/s Nikhil Comforts
M/s Nikhil Comforts entered into an agreement with Goa state infrastructure development corporation ltd. (GSIDC) for the work of additional air conditioning work for the new building of director of education at Porvorim, Goa. GSIDC wants to get air conditioning work for new building and the former has agreed to do the work of supply of goods and services for a predetermined price.
Question raised by applicant
Whether the supply of air conditioning is work contract services, composite supply or mixed supply?
If the applicant is covered under the work contract services the rate applicable is 9% CGST + 9% SGST. However if the applicant is covered under section 8i.e composite supply and mixed supply then the applicable rate will be 14% CGST + 14% SGST.
Explanation by the applicant
The applicant sought on the explanation that all the documents and information with number of court cases and judgements given by judiciary system in previous tax laws that air conditioning plant is immovable property and the same work is covered under the definition of work contract services.
Report of concerned officer
To cover air conditioning plant under the work contract services it shall first pass the test of permanency i.e. whether the machinery or equipment after installation is permanently fastened or embedded to the earth, so that the activity would be treated as “works contract “under GST.
Plain reading of Section 3 (26) shows that it defines “immovable property as things attached to the earth or permanently fastened to anything attached to the earth.
The term “attached to the earth” has not been defined in the General Clauses Act, 1897, Section 3 of the Transfer of Property Act, however, gives the following meaning to the expression “attached to the earth”:
- Rooted in the earth, as in the case of trees and shrubs;
- Imbedded in the earth, as in the case of walls and buildings;
- Attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
As the activities carried out by the applicant does not involve assimilation with the property and the work carried out by the applicant is only making the plant for a ‘wobble free operation’. And thus activity undertaken by the applicant cannot be considered as an immovable property by applying permanency test’.
The officer had putted various case laws and judgement given by higher courts on permanency test of immovable property, the judgement given by supreme court in case of Commissioner of Central Excise, Ahmedabad v Solid and Correct Engineering Works & Ors (2010 (5) SCC 122) is to divide the nature of work into goods and services. if the ratio of Commissioner of Central Excise, Ahmedabad v Solid and Correct Engineering Works & Ors (2010 (5) SCC 122) is followed the activity of the applicant will be considered as supply of goods and being a natural bundle of goods + services the activity would be considered as Composite supply and the rate of tax of principal supply will be applicable. Therefore, it is requested that the activity referred by the applicant would be termed as composite supply.
Conclusion
Hence the supply of air conditioning plant is a composite supply attracting 28% GST as here the supply of goods is considered as principal supply. Also the ITC is available to the recipient as the former supply is not covered under immovable property thus unblocking the input credit.
