ODISHA AUTHORITY FOR ADVANCE RULING

GOODS AND SERVICE TAX (GST)

RAJASWAVIHAR, BHUBANESWAR-751007(ODISHA)

PROCEEDINGS OF THE AUTHORITY FOR ADVANCE RULING

U/S.98 OF THE GOODS AND SERVICE TAX ACT, 2017

Members Present:

1. Sri Abhay Gupta. IRS, Additional Commissioner, Office of the Chief

Commissioner, GST, Central Excise & Customs, Bhubaneswar

2. Sri Nihar Ranjan Nayak, Additional Commissioner, Office of the

CT& GST Commissionerate Odisha, Banijyakar Bhawan,

Cantonment Road, Cuttack-753001- Odisha.

Subject: TP Central Odisha Distribution Limited (herein after referred to as the 'Applicant') having principal place of business/registered office/corresponding address at Power House Square, Unit - 8. Bhubaneswar-751012bearing GSTIN 21AAHCT8404D1ZQ has filed an application for advance ruling under Section 97 of CGST Act 2017 and Section 97 of the OGST Act, 2017 in FORM GST ARA-01 discharging fee of Rs. 5,000/- each under the CGST Act and the SGST Act.

1.0 The Applicant has sought ruling in respect of the following question:

(a) Whether "Deposit Work" undertaken by the Applicant and 6% supervision charges received for supervision and monitoring of deposit work is an integral part of supply of srvices of transmission or distribution of electricity and exempted under Entry 25 of Notification No. 12/2017 - CT (R) dated.28.06.2027 issued under GST Laws. Alternatively, whether the same is ancillary / incidental to the principal supply of transmission or distribution of electricity and form part of composite supply of services involving more than one supply as cont emplated under Section 2(30) of the CGST /OGST Acts 2017 and by virtue of provisions of Section8 (a) of the CGST/OGST Acts 2017has to be treated as a supply of the principal supply, namely, transmission and distribution of electricity and exempted or nil rated?

(b) If it is held that, the consumer deposit work and 6% supervision charges received by the Applicant under situation 1 & 2 is taxable and liable to GST, whether the Applicant is eligible for ITC of GST paid to contractors on execution of said work and GST paid on materials and equipment supplied free of cost out of its stock which is centrally procured earlier of procuring project specific from third party vendor / supplier?

(c) If it is held that the Applicant is eligible for ITC, whether any part of such input tax credit is required to be reversed under section 17(2) of CGST Act read with Rule 42 and 43 of CGST Rules?

1.1 At the outset, we would like to make it clear that the provisions of both the CGST Act and the OGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the OGST Act.

2.0 Submission of the Applicant

2.1 The Applicant is engaged in transmission and distribution of electricity to consumers. As a distribution licensee under Section 2(17) of the Electricity Act, 2003, the main activity of the Applicant is supply of electricity to consumers and for this purpose, it is engaged in other incidental and ancillary activities in connection with and in relation to supply of electricity. Sub-section (2) of section 43 of the Electricity Act casts a duty upon the licensee to provide, if required, electric plant or electric line for giving electric supply to the consumer premises. Any line which is used for carrying electricity for any purpose as well as any apparatus connected to any such line for the purpose of carrying electricity is mandatorily required to be provided to the consumer by the licensee and the licensee also charges defined expenses in providing any electric line or electrical plant used for the purpose of giving that supply.

2.2 The Applicant prepares estimated cost of the electrical infrastructures / electrical plant such as installations of bay, substations, underground cables, overhead lines shifting, etc including civil foundation wherever applicable, commonly known as 'deposit work' which is the cost of materials, equipments and services used plus applicable GST. in the demand note GST is to be levied further as deposit work is a service contract to consumer. The deposit work is either executed by the applicant or by the consumer as per provisions of Electricity Act 2003.

2.3 The 'deposit work' is executed in the following modes.

Situation 1: Estimated cost of deposit work along with GST is deposited by the consumer with the applicant prior to commencement of work. The work is outsourced by the Applicant through its purchase order to the contractor, who supply the materials, equipments and services for carrying out installation and erection of electrical infrastructures or electrical plant.

Situation 2:Estimated cost of deposit work along with GST is deposited by the consumer with the Applicant prior to commencement of the work. The 'work is outsourced by TPCODL through its purchase order to contractor who provide services and carry out installation and erection of electrical infrastructure and the materials, equipments are supplied by the Applicant free of cost either from its pool of materials/equipments stock which is centrally procured earlier or procuring project specific materials/equipments from third party vendor/supplier. Further, in both the situations, the consumer deposits 6% of the estimated cost of the deposit work plus GST as supervision charges for supervision and monitoring of execution of the deposit work. In both the cases GST is paid to the contractor for services provided and also on materials procured by the Applicant which is deposited by Applicant in compliance to GST law.

2.4 On completion of deposit works the exclusive right to operate, manage and maintenance of such electrical infrastructures shall rest with the Applicant and is used for transmission or distribution of electricity. In case of deposit work related to overhead lines shifting, the electrical line belongs to TPCODL are shifted as per request of consumer by using services of the contractor. The same shifting cost is treated as fresh assets in the books of TPCODL and used for transmission and distribution of electricity.

2.5 It has been contended that Entry No. 25 of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 exempts the services of transmission or distribution of electricity by an electricity transmission or distribution utility. The Applicant being an "electricity distribution utility" can claim exemption under the above entry. The deposit work executed by the Applicant on receipt of consumer contribution where the electrical infrastructures created remained with it and used for transmission or distribution of electricity being an essential activity having direct and close nexus with transmission or distribution of electricity to consumers, the same is covered by the exemption for transmission and distribution of electricity extended under relevant notifications.

2.6 The Applicant has placed reliance on the following decisions:

(a) In the case of Paschimanchal Vdyut Vitran Nigam v. CCE (2012) 3b STI' 636 /24 taxmann.com 169(CESTAT) and Paurvanchal Vdyut Vitran Nigam v. CCE (2012) 37 STT 268 / 26 taxmann.com 148 (CESTAT) wherein it is held that installing electricity meter and collecting hire charges has close nexus with transmission and distribution of electricity and hence is exempted under transmission and distribution of electricity. Erection, commissioning, installation and testing of electricity meters at the premises of electricity consumers are services of transmission and distribution of electricity and hence exempted.

(b) In case of Narasa Reddy v. UOI and Others in W.P. No. 23639/2018, dated 12-12-2018, the Honble High Court of Andhra Pradesh held that all services provided to a distribution licencee are outside the purview of service tax under Notification No. 32/2010-S.T., dated 22-6-2010. However, the applicant was registered with service tax for the purpose of payment of service tax under reverse charge mechanism for certain services received by it as required under section 68(2) oi the Act and was accordingly discharging service tax and filing returns.

2.7 It is also submitted that under GST Regime if the services such as Deposit work per se not covered by Entry No.25 of Notification No. 12/2017-CT (R) dated.28th June 2017 i.e. transmission or distribution of electricity, then such services would form part of composite supply of services by the Applicant involving more than one supply as contemplated under section 2(30) of the CGST/SGST Acts and, would, therefore by virtue of provisions of Section 8(a)of the CGST Act, have to be treated as ancillary/incidental supply to the principal supply, namely, transmission and distribution of electricity and taxed accordingly.

2.8 Hon'ble High Court of Gujarat, in its Judgment dated 19th December, 2018, in the case of M/s. Torrent Power Ltd. v. Union of India [2020 (34) G.S.T.L. 385 (Guj.)j, has already clarified that "The Meaning of "Transmission and distribution of electricity" does not change either for the negative list regime or the GST regime. Accordingly, the services which stood included within the ambit of transmission and distribution of electricity during the pre-negative list regime cannot now be sought be excluded by merely issuing a clarificatory circular, that too, with retrospective effect". Observing this, Hon'ble High Court has struck down paragraph 4(1) of the Circular No. 34/8/2018-GST, dated 1-3-2018 as being ultra vires the provisions of Section 8 of the CGST Act, 2017 as well as Notification No. 12/2017-C.T. (R), dated 28-6-2017. The aforesaid judgment of the Gujarat High Court was followed by the Rajasthan. High Court in case of Jodhpur Vidyut Vitran Nigam Ltd. 2022 (56) G.S.T.L. 273 (Raj.)and a Division Bench of the Tribunal in M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. 2022 (67) G.S.T.L. 86 (Tn. - Del.) and held that all services related to transmission and distribution of electricity are exempted from service tax.

2.9 With regards to availment of ITC for GST paid to contractors in execution of deposit work, it is submitted that on conjoint reading of Section 16 & 17 of GST Act, 2017 read with Rule 42 & 43 of the CGST Rules, 2017, it can be deduced that taxes paid on goods or services received for construction of plant or machinery on one's own account is available as input tax credit and is not blocked under Section 17(5) of the CGST Act, 2017. It is also submitted that all the electrical installation covered under deposit work qualify as 'plant' or 'machinery'. Apparatus, equipment, and machinery associated with installation of electrical infrastructures such as bay, substations, underground cables, electrical poles and overhead lines are fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports and fulfilled the conditions as laid down in explanation to section 17(5)(d) of CSGT Act 2017. So the Applicant has the bona fide belief that all such electrical infrastructures executed under deposit work are plant and machinery and the provisions of ITC blocked under section 17(5)(d) are not attracted. In support of the contention, the Applicant has relied upon many decisions, a few of which are referred below.-

(i) The Authority of Advance Ruling in case of Kerala State Electricity Board Ltd., [2023] 153 taxmann.com 51 (AAR - KERALA).

(ii) The case of Safari Retreats Private Ltd vs. Chief Commissioner of CGST, 2019 (25) G.S.T.L. 341 (Ori.).

(iii) M/s. Rattha Holding Co. Pvt. Ltd. Vs Commissioner of Central Services Tax, Chennai (2018 (9) TMI 1722)

3.0 The personal hearing was fixed on 15.01.2024 under due intimation to the Applicant, the jurisdictional officer of State & Central GST (intimated through their respective Commissionerates along with a copy of the application and the written submission of the Applicant). The Applicant, through its representative Mr Niranjan Swain, Advocate appeared for personal hearing. Mr Swain re-iterated the submissions already furnished in the application filed for advance ruling, further, during PH, Mr Swain also submitted a fresh written submission, wherein, tire Applicant in support of its submission has relied upon different Judgments including Judgment of Hon'ble High Court of Gujarat in the case of M/s. Torrent Power Ltd. v. Union of India [2020 (34) G.S.T.L. 385 (Guj.)] / [2019] 101 taxmann.com 303 (Gujarat) which was followed by the Rajasthan High Court in case of Jodhpur Vidyut Vitran Nigam Ltd. 2022 (56) G.S.T.L. 273 (Raj.) and a Division Bench of the Tribunal in M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. 2022 (67) G.S.T.L. 86 (Tri. -Del.)and requested to decide the issue accordingly. The Revenue has neither submitted its comments nor appeared for personal hearing.

3.1 Consequent upon appointment of New SGST Member vide Government of Odisha Notification No.9739-FIN-CTI-TAX-0072/2017 dated 06.04.2024 communicated under Letter C.No.CCT-PEI-POL-0079-2021/5015/CT&GST dated 10.04.2024, a fresh personal hearing was conducted on 23.04.2024. The Applicant through its representative Niranjan Swain, Advocate & A K Varshney, TLT appeared for personal hearing. During P.H., they have submitted additional submission, wherein it has been contended that deposit work executed by applicant is an essential activity having direct and close nexus with transmission or distribution of electricity to the consumers and supply of electricity to consumers cannot be possible and completed without availability of such electrical infrastructures / plant executed under said deposit work which is covered by the exemption notification that is Entry No.25 of Notification No. 12/2017-CT (R) dated.28th June 2017 and exempted from levy of GST. The Applicant has relied upon Honble Regional Bench - Court - 3, CESTAT, Ahmedabad in case of Gujarat Energy Transmission Corporation Ltd (Appeal No. 10317 of 2017-DB and 10318 of 2017 - DB vide its Order dated.06.02.2024) . As regards availment of 1TC, the Applicant relied upon advance ruling in the case of Punjab State Transmission Corporation Ltd 2G23 (78) G.S.T.L. 344 (A.A.R. - GST Pun.). The Applicant contended that ITC available is not required to be reversed even if property remains under ownership of the applicant.

Discussion & findings

4.0 We have gone through the advance ruling application, question on which advance ruling has been sought and the Applicant's interpretation of law and/or facts, as the case may be, in respect of the question asked. We observe that the issue before us is squarely covered under Section 97(2) of the CGST Act, 2017 and therefore we admit the application for consideration.

4.1 The questions before us to decide are as under;-

(a) Whether "Deposit Work" undertaken by the Applicant in Situation - 1 and 2 and 6% supervision charges received for supervision and monitoring of deposit work is an integral part of supply of services of transmission or distribution of electricity and exempted under Entry 25 of Notification No.12/2017 - CT (R) dated.28.06.2027 issued under GST Laws. Alternatively, whether the same is ancillary / incidental to the principal supply of transmission or distribution of electricity and form part of composite supply of services involving more than one supply as contemplated under Section 2(30) of the CGST /OGST Acts 2017 and by virtue of provisions of Sections (a) of the CGST/OGST Acts 2017 has to be treated as a supply of the principal supply, namely, transmission and distribution of electricity and exempted or nil rated?

(b) If it is held that, the consumer deposit work and 6% supervision charges received by the Applicant under situation 1 & 2 is taxable and liable to GST, whether the Applicant is eligible for ITC of GST paid to contractors on execution of said work and GST paid on materials and equipment supplied free of cost out of its stock which is centrally procured earlier or procuring project specific from third party vendor / supplier?

(c) If it is held that the Applicant is eligible lor ITC, whether any part of such input tax credit is required to be reversed under section 17(2) of CGST Act read with Rule 42 and 43 of CGST Rules?

4.2 The issue was examined in detail. It is observed that the Applicant in addition to the principal activity of providing services of Transmission and distribution of electricity is also providing services in the form of Deposit Works to various consumers. As per the submission made to the application, the Applicant prepares estimated cost of the electrical infrastructures/electrical plant such as installations of bay, substations, underground cables, overhead lines shifting, etc including civil foundation wherever applicable, commonly known as 'deposit work' which is the cost of materials, equipments and services used plus applicable GST. The deposit work is either executed by the applicant or by the consumer. In case of deposit work related to overhead lines shifting, the electrical line belonging to TPCODL are shifted as per request of consumer by using services of the contractor. The same shifting cost is treated as fresh assets in the books of TPCODL and used for transmission and distribution of electricity. In all the situations 6% supervision charges are received from the customers. It is also seen that on completion of deposit works, the exclusive right to operate, manage and maintenance of such electrical infrastructures shall rest with the Applicant for transmission or distribution of electricity.

4.3 It is also observed that sometimes, the existing system is modified/ augmented/ shifted on the specific request of the consumer which is termed as 'Deposit Works' by the Applicant. The consumer asks for the addition to the transmission system of the Applicant generally for the places where such transmission system does not exist or some time asks for modification/ shifting of transmission system from one place to another as per their specific requirements. In case of work involving modification/ shifting of the existing Transmission Asset/Infrastructure, the new transmission asset/Infrastructure is built/created first at a particular trench (where modification is required) so that the electricity supply in the related areas is not affected. After completion of such work of new transmission asset/infrastructure, shutdown (of electric flow) takes place for disconnecting old line at a particular trench (where modification is required) for connecting new line. The old asset/ Infrastructure (Line) is then dismantled. Therefore, practically new asset/infrastructure is created even in case of shifting/modification. The ownership of the transmission system after execution of deposit works will remain with the Applicant in the capacity of a State transmission licensee as per the provisions of the Electricity Act 2003. No doubt, the transaction of facilitating the execution of deposit works to the applicant's transmission system is included under the 'scope of supply' in terms of section 7 of GST Act, 2017.

4.4 The Applicant relies on the following entry, while contending his activities as part of the principal supply of "transmission or distribution of electricity", which reads as under

The entry no. 25 of the Notification, New Delhi, the 28th June, 2017 reads asNo 12/2017-Central Tax (Rate) follows:

4.5 It is not disputed that the Applicant's main activity of 'transmission or distribution of electricity" is rated 'nil' as per the above entry. But the issue to be decided is whether the activities of the Applicant as enlisted in the application are taxable or not. In this regard it is pertinent lo make a reference to the clarificatory circular issued with regard to the following services as approved by the Fitment Committee to the GST Council in its meeting held on 9th, 10th and 13th January 2018 as under

Circular No. 34/8/2018-GST F. No. 354/17/2O18-TRU dated 1st March 2018

Subject: Clarifications regarding GST in respect of certain services

4.6 From the above clarificatory Circular, it is clear that the abovementioned services numbered from (i) to (v) as provided by DISCOMS to the consumers are taxable. It is to be noted that the supply of electricity is continuous supply whereas the ancillary/associate services provided by the Applicant are made at the specific request of the consumer. It is the same principle that guides in the determination of the question whether the ancillary activities form part of the composite supply or not. The relevant provision of the CGST Act is reproduced as below.

"Section 2(30) "Composite Supply" means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply;

Illustration - Where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is a principal supply;"

4.7 As per provisions of Electricity Act 2003, the deposit work is either executed by the applicant or by the consumer. Both the applicant and the consumer have liberty to execute the deposit works of creation of electrical transmission infrastructure for transmission and distribution of electricity and therefore, the supplies of support services of transmission infrastructure and supplies of services of transmission and distribution of electricity are separable. When we go through the above definition, it becomes clear that the deposit work undertaken by the Applicant are not naturally bundled with supply of electricity; rather they are executed by/supplied by and charged for by the Applicant only if demanded or consumed by the customers. Further, the amount is recovered from the consumers as non tariff charge. This shows that the services of transmission of electricity is independent of the deposit contribution works under taken by the Applicant and accordingly do not fulfill all conditions specified in section 2(30) of the CGST/OGST Act for the purpose of treating both the supplies as composite supply. Thus, the exemption notified for 'transmission and distribution of electricity' cannot be extended to the deposit contribution works (support services) undertaken by the applicant on the pretext of those being a part of the composite supply, which is far from true. Rather those support services in form of deposit contribution works provided by the applicant are taxable supplies irrespective of the fact that whether the same are supplied by contractors or third parties. Thus, the exemption is limited to "Transmission and distribution' of electricity only.

4.7.1 The deposit works undertaken by the Applicant is supplying support services to electricity transmission & distribution classified under SAC-998631.The applicable rate of tax is 9% in view of Entry SI no.25 of the Notification No. 11/2017-CT dated 28.06.2017.

4.8 As regards the question whether, the Applicant is eligible for ITC of GST paid to contractors on execution of deposit work and GST paid on materials and equipment supplied free of cost to the contractor, we notice that the Applicant would lay down the required electrical infrastructures and would recover the cost from the consumer directly. The Applicant in its submission submitted that, the deposit work under taken by them qualify to be Plant and Machinery hence, they are eligible to claim input tax credit.

4.9 We see that Section 16 of the CGST Act lays down the eligibility and conditions for taking input tax credit which is reproduced as under:

"Eligibility and conditions for taking input tax credit.- (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person".

4.10 As per Section 16(1) of the Act, every registered person is entitled to take ITC charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business. In the instant case, we see that the works undertaken by the Applicant is for creation of the infrastructure which will be used for supplying supply of services of transmission or distribution of electricity for the furtherance of business. Therefore, ITC can be admissible to Plant and Machinery means apparatus, equipment and machinery fixed to the earth by foundation or structural support that are used for making outward supply of goods and services or both in accordance with the explanation provided under the third proviso to sub-section (5) of Section 17 of the CGST Act.

5.0 In view of the above, we pass the following order:

RULING

Q.1 Whether "Deposit Work" undertaken by the Applicant in Situation-1 and 2 (as annexed to its application for advance ruling) and 6% supervision charges received for supervision and monitoring of deposit work is an integral part of supply of services of transmission or distribution of electricity and exempted under Entry 25 of Notification No. 12/2017 - CT (R) dated.28.06.2027 issued under GST Laws. Alternatively, whether the same is ancillary / incidental to the principal supply of transmission or distribution of electricity and form part of composite supply of services involving more than one supply as contemplated under section 2(30) of the CGST /OGST Acts 2017 and by virtue of provisions of Sections (a) of the CGST/OGST Acts 2017 has to be treated as a supply of the principal supply, namely, transmission and distribution of electricity and exempted or nil rated?

Ans: Answer is in the 'Negative'

Q.2 If it is held that, the consumer deposit work and 6% supervision charges received by the Applicant under situation 1 & 2 is taxable and liable to GST, whether the Applicant is eligible for ITC of GST paid to contractors on execution of said work and GST paid on materials and equipment supplied free of cost out of its stock which is centrally procured earlier or procuring project specific from third party vendor / supplier?

Ans: ITC can be admissible to Plant and Machinery means apparatus, equipment and machinery fixed to the earth by foundation or structural support that are used for making outward supply of goods and services or both in accordance with the explanation provided under the third proviso to sub-section (5) of Section 17 of the CGST Act.

Q.3. If it is held that the Applicant is eligible for ITC, whether any part of such input tax credit is required to be reversed under section 17(2) of CGST Act read with Rule 42 and 13 of CGST Rules?

Ans: Yes, input tax credit is required to be reversed under section 17(2) of CGST Act read with Rule 42 and 43 of CGST Rules.

6.0The Applicant or jurisdictional officer, if aggrieved by the ruling, may appeal to the Odisha State Appellate Authority for advance ruling under Section 100 of the CGST/OGST Act, 2017 within 30 days from the date of receipt of the advance ruling.