Friday, 18 May 2018

AAR : Liquidated damages from contractor towards delay in deliverables, liable to 18% GST

Maharashtra AAR rules that GST is applicable on ‘liquidated damages’ chargeable upon the contractor once delay in deliverables is established, in relation to operation & maintenance activities and construction of new power plants or renovation of old plants; Rejects applicant’s contention that these damages being towards deficiency in services, amount to reduction in value of supply and same should not be considered as separate service covered by the term “Obligation to tolerate an act or a situation”; Perusing the agreement between the applicant and BHEL for erection & commissioning of main plant package, AAR observes that contract price and liquidated damages are two separate aspects / events, deduction of one from the other is a mere facilitation towards settlement of accounts; Stating that recovery of liquidated damages is an independent activity and consideration for the work done remains unaltered, AAR observes “For the Taxman, what would matter is the value for the work done. And once this valuation is properly done and tax liability thereon discharged, whether this value is paid partially or not paid at all would not be a concern from the taxation perspective but a matter between contracting parties..”; Resultantly, holds that empowerment to levy liquidated damages is for reason that there has been delay and the same would be tolerated but for a price or damages, hence, the income of the applicant would be for a ‘supply of service’ in terms of clause (e) of Para 5 of Schedule II; Such supply i.e. levy of liquidated damages, would be covered under Heading 9997 i.e. “Other services” under Notification No. 11/2017-Central Tax / State Tax (Rate) exigible to GST at 18%; Further clarifies that liability to pay tax on services shall arise at the time of supply, if the contractor fails to achieve trial operation within specified time period which falls under GST regime, then levy of liquidated damages would attract GST : Maharashtra AAR
The order was passed by Shri. B. V. Borhade and Shri. Pankaj Kumar.
Mr. S. S. Gupta, Mr. Karan Awtani, and Mr. Ashutosh Shukla appeared on behalf of the applicant.

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