Study on works contract under Haryana Value Added Tax Act, 2003

Works Contract is an agreement between contractor and contractee to transfer the moveable goods as per section 2(1) (zt). This includes the activities of assembling, construction, building, altering, manufacturing, processing, fabrication, installation, fitting out, improvement, repair or commissioning of any moveable or immoveable property.

Contractee as per section 2(1) (j) is the person for whom or for whose benefit a works contract is executed and contractor as per section 2(1) (k) is the person who executes either himself or through a sub-contractor a works contract. A sub contractor does not come under the definition of Contractor. Sub contractor is mere agent of contractor since goods transferred directly to Contractee.

Registration of Contractor/Contractee Contractor is to get himself registered under the VAT Act either as a registered dealer under section 11 or lump sum dealer under section 9. A lump sum dealer is also to submit the details of each contract to the Assessing Authority within 30 days of the award of the contract as per Rule 49. A Registered dealer is eligible for the input tax credit as per section 8 whereas the lump sum dealer is not since as per section 2(1)(w) input tax means the amount of tax paid to the State in respect of goods sold to a VAT dealer. A lump sum is not a VAT dealer though he is registered under the Act. A register dealer is to pay the tax on the goods transferred in the contract as per the rate of tax on the goods transferred as per section 7 of the Act whereas the lump sum dealer is to pay the tax @ 4% on the value of the contract as per Rule 49(1).

Filing of Returns        A registered contractor is to file quarterly return on Form R-1 like other dealers as per Rule 16. A lump sum dealer is to file the return on Form R-6 as per Rule 49(4). A contractee is to file his return on Form R4A whether he is registered or not registered under the Act as per Rule 16(1). The return is to be filed by the next of the month after each quarter i.e. 31 July, 31 October, 31 January, 30 April as per Rule 16(1). An annual return on Form R-2 is to be filed by every registered contractor by 30 November as per Rule 16(2) but in the case of lump sum contractor need not to file the Annual Return since R-2 is to be filed by the registered dealer who file the R-1 as mentioned in Rule 16(1).

Payment of Tax  A registered contractor whose tax liability does not exceed 1 lakh rupees in a year  is to deposit the tax along with return otherwise he is to deposit the tax monthly by 15th of each month for the previous month as per section 14(3). A lump sum contractor is to pay the tax within 30 days of the close of the quarter. A contractee is to deduct the tax @ 4% before making the payment to contractor as per Rule 33(1) and the same will be deposited by 15 of the next month for the previous month as per Rule 33(5) into the appropriate Government Treasury in challan in Form VAT C-1 separately for each payee.

TDS    A contractee is to deduct the TDS @ 4% from the bill amount of contractor as per Rule 33. TDS will not be deducted on the Tax amount included in the Bill. A contractor is also to deduct the tax from the payment made to subcontractor as per the clarification given by Haryana Government in the case of DLF Universal Ltd. DLF has taken up the case with the Haryana Tax Tribunal against this clarification and the decision is awaited. A provision to deduct the TDS from the payment made to subcontractor is ultra vires as per decision of Allahabad High Court reported in 97STC355. Collection of Taxes from both contractor and sub contractor would be violative of article 14 as per AP High court decision in the case of M/s Larsen Toubro Limited and another V State of AP(148 STC 616AP).

Assessment    Assessment of registered dealer is to be completed within three years of the close of the year as per section 15(3). A notice is to be given for scrutiny assessment within one year of the last return filed. It means the notice for scrutiny assessment in the case of registered dealer is to be given by 30 November 2008 and in the case of lump sum dealer by 30 April 2008 for the year 2006-07.

Use of declaration Forms  A lump sum dealer/registered dealer is to use the declaration forms like VAT D-1, VAT D-3 and Central form C as per Rule 49(6). VAT D-3 from must be used for the movement of goods value exceeding 25000/-  from any place in the State to any other place in or outside the State. In case of loss of any form, an indemnity bond in Form VAT-B3 will be given to the Assessing Authority for the sum as the authority determine.

Tax invoice  A registered dealer can issue the sale invoice/tax invoice but the lump sum dealer can not issue the tax invoice as per Rule 46(5). Tax should not be charged on the invoice. Tax invoice is used between the two registered dealers under the VAT Act. 

Refund Contractor can also claim the refund if applicable. Tax collected from the sub contractor will also be the case of refund but this amount can not be refunded till the assessment of sub contractor is finalized. These provisions under the Act make joint or severally liable to contractor and the sub-contractor. Burden to prove the turnover of sub-contractor can not be shifted to contractor as per judgment of AP High Court reported in 105STC227(AP) and 47STC204(AP)

Judicial Guidelines

The Apex Court in Dunkerley had brought a wide impact till the 46^th Constitutional amendment sales tax on indivisible works contracts could not be levied. The Supreme Court has upheld the validity of the 46^th Amendment and the works contract which was indivisible one is by a legal fiction altered into a contract which is divisible one for sale of goods and the other for supply of labour and services. The cost of consumables used in works contract property in which is not transferred in the course of execution of the works contract, is to be excluded from the taxable turnover as nothing is being transferred from contractor to contractee to be taxed as held in the case of Gannon Dunkerley and Co. Vs St. of Rajasthan(88STC 204SC).

RK JAIN ADVOCATE