This is a presentation covering accounting, Direct and Indirect Tax Aspects of the Construction Sector.

1. [Construction – Accounts and Tax Aspects] All sections to appear here

2. [Accounting & IT] pptPlex Section Divider The slides after this divider will be grouped into a section and given the label you type above. Feel free to move this slide to any position in the deck.

3. Which Indian corporate today is not connected with the construction ?

4. Started his careear as a Civil Engineer building roads, dams.

5. The ICAI issued AS 7 in the year 1983 which was later on revised in the year 2002. The AS 7 laid down the principles of accounting for ‘construction contracts’ in the financial statements of the Contractors. As per the revised AS 7 the accounting was to be done as per percentage/progressive completion method

6. ACCOUNTING ISSUES Accounting as per AS – 7- Construction contracts - two basic types• Fixed price contracts• Cost plus contracts– Method prescribed for accounting - Percentage Completion Method • When revenue can be estimated reliably- Revenue and cost are recognized based on the stage of completion reached In the accounting period in which the work is performed.- Future activity is WIP. • Revenue can’t be reliably estimated- Revenue recognized only to the extent of cost incurred.- Cost recognised in the year incurred.- Expected loss on construction to be recognized as an expense immediately.

7. ACCOUNTING ISSUES – cont… Theoretical Scenario – Value of Work order is Rs.100 cr. Estimated Completion Cost is Rs.80 cr Cost Incurred till date is Rs. 20 cr Percentage Completion is 25% (20/80) Revenue to be booked is Rs. 25 cr. (Thus profit booked is Rs 5 cr)

8. Practical Scenario – Value of Work order is Rs.100 cr. Hard Rock / Soft Rock Project released in Installments Incentive for timely completion Escalation Clause Change in Engineering.

10. The expected costs fluctuate every moment. If the output in terms of concrete is 100 cum per day the cost would be 65 cr if it is 60 cum per day the same is 110 cr.

11. Situations like labour unrest, accidents at the site, equipment damage can change the whole scenario of the site.

12. Confusion on Indirect Taxes.

14. ACCOUNTING ISSUES – cont… How do we then recognize the revenue in such a scenario ? RA Bills system in case of contracting companies Billing more than work done Filed Survey with Billing Engg. Certificate from Site Manager Physical Verification of Stock

15. ACCOUNTING ISSUES – cont… Contingencies, like liquidated damages from the client / similar claims on the sub-contractors would reduce the cost. Escalation / Incentives – Acceptance from the client If technical audit is carried out at the site, cross verification of findings with the technical auditor can be of great use. Informally communicate with the client / sub-contractors at the construction site

16. Booking Future Losses... Another point worth noting for civil contractors is regarding foreseeable losses as per the judgement of Jacobs Engineering vs. ACIT (ITAT Mumbai) – The assessee was engaged in the business of executing works contracts and was following the mercantile system of accounting and the “percentage completion method”. It claimed a deduction for “foreseeable losses” on incomplete projects which was disallowed by the AO and CIT (A) on the basis that it was merely an anticipated loss based on an estimate.

17. On appeal by the assessee, It was HELD, (i) Para 13.1 of Accounting Standard 7 (AS-7) mandates accounting of foreseeable losses (ii) The fact that AS-7 has not been notified by the Central Government as an accounting standard for purposes of s. 145 (2) is not relevant; Thus anticipated losses on incomplete projects are allowable as a deduction subject to their being calculated as per AS-7.

20. Guidance Note – Real Estate Accounting 3. Transfer by way of an enforceable agreement to sale subject to fulfillment of additional conditions :- a) Price Risk is transferred b) Buyer has legal right to sell or transfer his interest in the property without any conditions hampering such transfer Once the risk and rewards are transferred the revenue needs to be recognisedas per :- a) POCM prescribed under AS-7, if substantial acts with regard to construction are pending to be performed. b) In other cases as per AS-9

21. During the year 2010-11 construction of some bungalows and of common facilities has been started for a scheme of 200 bunglows. As on 31/03/2011 work of some bungalows was completed at plinth level and of some bungalows at first floor level. Also construction of club house was completed at first floor level. How the valuation of inventory, WIP should be done as on 31/03/2011. Whether Land is to be seen as purchase and as a closing stock as on 31/03/2011. The club house and all common facilities are to be handed over to the society of members after completing the whole scheme. How the accounting of completed work of common facilities should be made as on 31/03/2011 and at the time of handing over to the society of members.

22. Lets put in some figures Estimated Cost of Construction of one unit – Rs. 20 Lacs Estimated Cost of Common construction (including cost of Land) allocable to each unit – Rs. 10 Lacs Actual Cost Incurred Till 31/03/2011 – On Flats – Rs. 10 Lacs per flat Common – Rs. 5 Lacs per flat Hence Percentage completed is 50% Out of 200 units, agreement to sell transferring substantial risks have been made for 50 units at Rs. 100 Lacs

23. Revenue / Inventory So 50 units shall be valued at Rs. 50 Lacs (booking 50% of revenue) – Contract WIP The balance 150 units shall be valued at Rs. 15 Lacs (At Cost) – Inventory of Flats under Construction At the end of the project, the Complete Contract WIP is transferred to Society A/c along with all the Customer Receipts.

24. Tax Incentives Infrastructure – Sec 80IA(4)(i) Housing projects – Sec 80IB(10) SEZ development – Sec 80IAB

26. There is a difference between developer and contractor. Developer designs and conceives new project and the contractor executes the same without any risk on his own account. Benefit is available only for the developer.

27. Section 44AD : Presumptive Taxation Deemed income under the head " Profits and gains of business or profession" - 8 percent of the total turnover / gross receipts - Higher sum as declared by the assessee in his ROI Applicable only if gross receipts paid or payable does not exceed sixty lakhsrupees Depreciation deemed to have been calculated All deductions under Section 30 to 38 be deemed allowed Salary and interest to partner to be deducted from income computed Tax Audit required only if income lower than 8%.

28. Other Points to remember No cash payments in a day to a single person > 20,000 Creditor Confirmations from local creditors Delay in Statutory Payments including TDS beyond return filing period is added back to income.

29. Problem given to Jinee

31. [VAT] pptPlex Section Divider The slides after this divider will be grouped into a section and given the label you type above. Feel free to move this slide to any position in the deck.

32. VAT – The Three words which have really tormented the construction sector

33. WHAT IS WORKS CONTRACT Sale - Transfer of property in goods ( whether as goods or in some other form ) involved in execution of a works contract. Works Contract – No definition under the Act but - Definition given in and Explanation in Guj VAT Work Contract means a contract for execution of works and includes such works contract as the State Government may, by notification in the Official Gazette, specify.

34. The works contracts are not normal sales. For example, at the site of construction of a building, before the Construction (works contract) commences, the goods like cement, steel, sand etc. are lying but after the Construction a building (immovable goods) comes to an existence. This is the difference between the ` Normal” sale and the “deemed sale” in the indivisible works contract .

35. VAT Basics Different acts for different states VAT a cost to most clients unlike service tax VAT is payable in all Works Contracts which involve transfer of property in goods. Since the value of the Contract is indivisible, various issues are involved with respect to offering the VAT Liability.

36. Valuation Options under VAT

39. Basic Modes available in each state:- Composition – Pay flat rate of tax on the turnover towards civil contracts, for e.g. 0.60% in Gujarat (No out-state purchases allowed), 4% in Orissa, 3% in Rajasthan, 2% in Madhya Pradesh. Advisable in case of Turnkey Contracts with significant material portion. Actual – Identify the material consumed against the Running Account Bills raised during the period. Advisable when major materials like Cement / Steel are being supplied by the client. For Ex. Value of Work is Rs. 20 Crores. Expected cost of Transferable materials (VAT Rate – 4%) is 4 crores. GP Rate is expected to be 20%. VAT under Composition (M.P) – 2% of Rs.20 cr = Rs. 40 Lacs under Normal Scheme – 4% of (Rs 1 cr) = Rs. 4 Lacs Where 1 cr is the allocable GP to Transferable Purchases

40. Types of composition For complete contract Application under Form 214 within 30 days of commencement of Work Certificate under Form 214A For Complete year Application under Form 214 within 30 days of commencement of Work Certificate under Form 214A No condonation for delay – Matter Pending before Tribunal Non receipt is assumed as granted

42. Composition of Contracts under Gujarat VAT ? In other cases the rate is 2%.

43. Deduction in composition scheme - Deduction of amount of entire sub-contract shall be made, if any - If under complete composition then even for unregistered contractors deduction is available - If composition contract to contract then only for registered sub- contractors. No Labour deduction in Works Contract, if composition is opted ?

44. Conditions for the composition Scheme:- Dealer must be Registered Dealer Tax credit shall NOT be availed in respect of purchases Tax Invoice shall NOT be issued to the client Tax shall NOT be charged from the client Interstate / OGS Purchase is NOT allowed ? ?

45. Continued… Once Application for composition is made and is not rejected by the department, the acceptance is presumed . Option shall be final and is IRREVOCABLE. (Rule 28(8)(i) ) Suggestion – 1. If you are applying a fresh registration, then its advisable to apply for composition at the same time. (Permissible period of 90 days is likely to lapse) 2. OGS items as Free Supply from the contractee. ?

46. Regular Mode In an unorganised sector, it is very difficult to obtain the relevant details. Sales Inv are raised on a progressive basis, the VAT liability also has to be discharged accordingly. Identification of material transferred in each of the sales invoices is required. Further if you are working with a client like Reliance, when you have 10-12 orders from 10-12 different group companies. Bifurcation of material into transferable and non-transferable may not be easy. ? ?

48. Tax shall be paid with respect to sales

49. Tax credit on inputs subject to availability of Tax Invoice, can be availed.

50. Price of sub-contract paid to Registered Dealer may be deducted.

51. Labour Charges may be deducted if clearly identifiable.

54. Hire Charges for machinery and tools,

55. Consumables such as water, electricity and fuel,

56. Cost of establishment, expenses and profit relating to supply of labour and services.?

57. Basic Step is to sit with the Site Engineer and bifurcate all the purchases into Transferable and Non-Transferable. For Ex- Wooden Materials which are used for Shuttering activity, are not transferred to the client and are consumed and booked as “Consumables, Stores and Spares”. You can then mark up the Purchases of Transferable with GP rate and offer the relevant rate on a monthly basis.

58. Calculation sheet Further you need to make sure that Non-Transferable Purchases of Rs. 40 has been Shown under the Head of Consumables, Stores and Spares in P&L Account. Items consumed for each invoice is determined.

59. Is VAT applicable to Builders / Developers? VAT

61. They entered into Development agreement with owners of land.

63. The appellants were carrying out construction as developers for the prospective purchaser.

64. Agreement entered into before the completion of the unit, was considered as Works Contract.

66. A small e.g. for Builders

67. TDS Rate under GVAT Person responsible for payment exceeding Rupees 1 crore for works contract is responsible for deduction of tax at prescribed rates ?

68. VAT Input for Works Contracts VAT Credit is available when goods purchased are used for the purposes such as: Saleesale Interstate salexport Transfer to Branch or sent to consignment agent. – Reversal Rule introduced. Input not available on P&M used in Work Contracts. ?

69. Audit of Accounts u 63 A reg. dealer whose turnover exceeds Rs. 100 lacs(Taxable turnover – Rs.20 Lacs) in any particular year needs to get his accounts audited by a specified authority within nine months from the end of the year. A dealer should submit the audit report within 30 days from the obtaining such report to the concerned commercial officer. ?

70. Some Tips :- Free Supply vs Price Deduction by Contractee If the client in his WO mentions VAT – Extra, WCT – Extra Unregistered sub-contractor is making any taxable purchases, Compare outstate suppliers’ with CST rates with the Gujarat suppliers’ before & After VAT rate. In case of stock transfer, if VAT reversal rate comes more than 2% go for CST sales in place of stock transfer. VAT on Concrete is 15%, but VAT on Sand/Aggregate is 5%, so what you transfer is important. – Cement is Free issue. ?

71. Back to Back Contracts L&T Judgement – Property passes on from the Sub-contractor to the Client and contractor is just an agent. Impact - Mr X has awarded contract to Mr Y at Rs.100 cr. Mr Y has sublet the complete job to Mr Z at Rs.80 cr. Mr Y does not need to pay any tax on the portion of Rs.20 cr as there is no element of transfer of property as per Sale of goods Act. Suggestion – Projects with huge margins can be subletted to any sister concern to reduce VAT implications. ?

72. Civil Contractor

73. [Service Tax] pptPlex Section Divider The slides after this divider will be grouped into a section and given the label you type above. Feel free to move this slide to any position in the deck.

74. Entities involved Consultants – Architects, Real Estate Agents, Project consultants Contractors – Civil, Mechanical Builders and Developers Land Owners – Own lands for further sale/lease

75. Centralised Registration Object – Several Premises for rendering services. Optional CCE grants the registration Centralised Billing / Centralised Accounting Zonal Centralised Registration Modification Concept of Input Service Distributor Advantages Time No information to any other jurisdiction Audit / Correspondence at one place

76. Chapters and significant definitions – From Consultant’s perspective Consultant Engineer Architect Interior Decorator Real Estate Brokers Management Consultancy

77. Chapters and significant definitions – From Workmen’s perspective Erection, Commissioning and Installation services. Commercial and Industrial Construction Construction of Complex Management, Repair and Maintenance Site Formation Work Contract Service

78. Chapters and significant definitions – From Resource supplier’s perspective Renting of property services Supply of Goods (without VAT) services

79. Option for Discharge of ST

80. Value of Free Issue Material to be added back in both the composition schemes.

81. Budget Amendments 2011 Conversion from Cash Basis to accrual basis and Point of Taxation. Rule 6(3) amended to claim credit of earlier tax paid in case of reversal of invoice or money. Rule 3(2A) of the Works Contract Rules, 2007 so as to restrict the Cenvat to 40% of the tax paid on services relating to erection and construction in case tax has been paid on full value of the service

82. Goods / Service that shall not constitute input – Any goods / services used for construction of a civil structure unless it is provided by a sub-contractor to the main contractor. Similarly the definition of exempted services shall include taxable services which are partially exempted with the condition that no credit of input and input service shall be availed. Moreover it has been clarified that exempted service will include trading service. 38.1 A tariff rate of 5% excise duty is being prescribed on Ready-mix concrete (RMC). However these goods would attract the concessional 1% duty without CENVAT credit facility.

83. Options ……… Lets have a look at some Invoices C:sersarunesktoproject construction seminarodule 3 - Taxinal FilesAT Invoice Formatomposition C:sersarunesktoproject construction seminarodule 3 - Taxinal FilesAT Invoice Formatetail Sale inv. format-J C:sersarunesktoproject construction seminarodule 3 - Taxinal FilesAT Invoice Formatax Invoice-Format- XYZ

84. Also recent circular in response to an application made by Jaiprakash Associates

86. Contractors lead a very tough life….

87. Construction of complex services

88. Chronology of Judgements Karnataka High Court - K Raheja - 2006 Allahabad HC - Assotech Reality – 2008 (Set Aside by SC in Advance Ruling – Hare Krishna - 2008 Guahati HC – Magus Construction Pvt Ltd – 2008 CBEC Circular Dated 29.1.2009

90. Service tax levied on consideration earned by developer • Prior to amendment in 2010, concept of ‘self-service’ existed “construction of a complex (a new building) - intended for sale, -before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder before the grant of completion certificate by the competetent authority) shall be deemed to be service provided by the builder to the buyer” Abatement scheme for builders also introduced. Option to pay Service tax at the applicable rate on 25% of the Agreement value, provided no deduction of land is availed and no CENVAT credit is claimed

91. Other points – Con. Of Complex Parking Slots or Garage of Properties - Along with the apartment or flat, builders also sell parking slots to buyers. No service tax would be applicable for the amount paid for such parking slots. Preferential Location Services - Builders many times will build internal roads, pavements, or maintain gardens for the development of the property complex. Such services would attract a service tax. Also any additional amount paid for a floor rise, an apartment with a specific number or a specific direction, apartment facing either a park, pool or sea , would cost the buyer a service tax. Low Cost Housing Segment - In recent months, the real estate industry has developed various affordable properties worth less than Rs 20 Lakhs for the lower and middle income group. Properties belonging to this low cost housing segment would be exempt from service tax.

92. Exemptions under Service tax for the construction sector SEZ Export of services Road Airport Port Bridges, Tunnels, Railways Services to government

93. How to handle service tax audits Keep all cenvat invoices ready. Verify all receipts in your bank account. Prepare the reconciliation as per the format proposed by the department. Dept. normally gives you sufficient time for getting ready. Audit may come for once in 4-5 years, but the complete period would get covered.

94. At this Point in time, the question is whether the charge of VAT and service tax shall be overlapping. The matter to a certain extent has been settled by the SC Judgement in IMAGIC CREATIVE PVT LTD Vs COMMISSIONER OF COMMERCIAL TAXES Appeal (civil) 252 of 2008 wherein it has been held “28. Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided.“

95. Typical Civil Contractor