Page 101 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] G.N. CONSTRUCTION v. COMMISSIONER OF C. EX. & S.T., JALANDHAR 315
23. The stand of the petitioners was that as per the aforesaid contract, the
petitioners could not shift their liability of any kind of tax on the Board.
Where any liability, as per law, is on the Board, that cannot be shifted on
the contractors by way of the aforesaid clause. As per the provisions of Fi-
nance Act, 1994, as amended up to date read with Notification No. 30/2012-
S.T., dated 20-6-2012 on the works contracts the liability is 50% on the con-
tractor, whereas 50% is on the contractee, i.e., service provider and the ser-
vice recipient. The stand of the petitioners was that for any alleged levy on
the petitioners, namely, the contractors/service provider, the department
never issued any notice seeking to levy the tax. Notice was issued to the
Board. From the running bills of the petitioners, the Board had deducted
the amount of tax, which is to be paid by the Board, in case the tax is levia-
ble, which was totally uncalled for. A perusal of the aforesaid clause shows
that the contractor is liable to pay various taxes, as mentioned in the clause,
directly to the department in accordance with the Rules and the Regula-
tions in force from time to time. The case of neither of the parties is that the
liability, which may be put on the contractor/service provider, if tax is levi-
able, is being passed on to the Board, as the scheme of the Act provides for
levy of tax 50 : 50 on service provider and the service recipient. Hence, the
action of the Board, even if it is assumed that tax is leviable, to pass on their
share of burden as per the provisions of the Act on the contractors is not
envisaged in the clause.
25. In view of our abovesaid discussion, the questions, as framed above,
are answered as under :
(i) On the contract for construction of BPL houses, as awarded by
the Board to the petitioners, no Service Tax is leviable w.e.f. 1-
7-2012; and
(ii) the Board is not entitled to pass on the burden of Service Tax
payable on its part, if the tax is leviable, upon the contractors.”
Therefore, we hold that for the period prior to 1-4-2015, the appellant is not liable
to pay Service Tax at all on construction of EWS Flats, but thereafter, the appel-
lant is liable to pay only 50% of the Service Tax on them in terms of Notification
No. 30/2012-S.T., dated 20-6-2012 at Sr. No. 9.
15. We further take a note of the fact that in the rest of the services, it is
objected by the revenue that the said services have not been provided to the
business entity registered at body corporate. We find that the construction of
Multi-level car parking for Government Medical College and Hospital and con-
tract was entered by PWD, B&R [Public Works Department (Building and
Roads)], Amritsar; Repair and renovation work at Medical College, Amritsar to a
contract with PWD (B & R), Amritsar; Meritorious School at Ferozpur to a con-
tract with PWD (B & R), Ferozpur; Construction of foot-over bridge at Amritsar
to a contract with PWD (B & R), Amritsar. The Sr. No. 9 in the Notification No.
30/2012-S.T., dated 20-6-2012 is available to the appellant if they provided ser-
vices to a business entity registered at body corporate. The definition of “busi-
ness entity’ has been defined under Section 65B(17) of Finance Act, 1994 which
reads as under :-
Section 65B(17)
“business entity” means any person ordinarily carrying out any activity re-
lating to industry, commerce or any other business or profession”;

GST LAW TIMES  18th June 2020  101