2018 (10) TMI 683 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (18) G. S. T. L. 175 (A. A. R. – GST) – Classification of supply – composite supply of goods and services – services provided by the Applicant under the ICT @ School Project – Applicability of Entry No. 72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 read with Entry No. 72 of Notification No. 12/2017-State Tax (Rate) dated 29.06.2017 – interpretation of afore-mentioned Entry No. 72 of the said Notification to the subject activity of the applicant.
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Whether the services provided by the Applicant to the Government secondary and higher secondary schools under the ICT Project, are covered under the scope of Entry No. 72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017?
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Held that:- The Director of Education (Secondary and Higher Secondary), Maharashtra State (hereinafter referred to as DE(S&HS) to implement ICF project in 5000 government secondary and higher secondary schools i
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a State, for a period of 5 years, for implementation of the ICT @ school project in Government and Government aided higher secondary schools across the State of Maharashtra. In the preamble of the contract it is mentioned that “In its pursuit to improve the quality of education in Secondary and Higher Secondary schools of Maharashtra, the supply of computer hardware, software and connected accessories, Faculty and provision of IT Education Services in Government Secondary and Higher Secondary schools in the State of Maharashtra on Build, Own, Operate and Transfer (BOOT) Model is envisaged under the ICT @school scheme under Public Private partnership’ – Applicant, has to procure, supply and install requisite number of IT equipment i.e. computer hardware, software, etc and to maintain and keep the same in proper working conditions for the entire contract period of five years along with deployment of manpower (in the form of Faculty member/ Instructors, etc) in the said 1590 Schools to im
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omposite supply of Goods i.e. hardware and network equipments, power equipments, etc. In view of the fact that the applicant has to set up the site provided by the DE(S&HS) as a computer lab by way of procuring and installing the computers, and other equipments as mentioned above, it would appear that the entire project cannot be termed as a training programme. It would rather be a composite supply of goods and services, not naturally bundled and having distinctly separate components with distinct value attributable to each of the components – It is a composite supply having distinctly identifiable components with distinct value attributable to each of the components. There is no doubt that the applicant has provided computer training service as part of the contract, but the said service is not the pre-dominant/ principal supply. In fact as seen above the contracted supply has many distinct supply components out of which training is a small component – as per para 1(c) of Schedule II o
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to be levied. In the present case all the conditions of Entry No 72 of the Notification No. 12/2017 have not been fulfilled and therefore there is no question the applicant being eligible for exemption on the basis of the said Entry.
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Ruling:- Entry No. 72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 read With Entry No. 72 of Notification No. 17/2017-State Tax (Rate) dated 29.06.2017 is not applicable to the services provided by the Applicant under the ICT @ School Project – The supply of goods and services as made by the applicant under ICT @ School project is not in compliance of all conditions of exemption as notified under the above referred Notification. – GST-ARA-48/2017-18/B-55 Dated:- 25-6-2018 – SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER PROCEEDINGS (under section 98 of the Central Goods and Service Tax Act, and the Maharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Serv
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lar provision under the CGST Act / MGST Act would be mentioned as being under the GST Act . 02. FACTS AND CONTENTION – PER THE APPLICANT The submission (Brief facts of the case), as reproduced verbatim, could be seen thus – Brief relevant facts: 1. IL&FS Education and Technology Services Ltd. ( Applicant ) is a public limited Company incorporated in India and registered under the Companies Act, 1956. The Applicant having GSTIN 27AABCI2106H1Z0 is registered in Mumbai, Maharashtra and falls within the jurisdiction of Mumbai Nodal Division-5, Maharashtra. The Applicant is the social infrastructure arm of IL&FS group and is engaged in the key areas of education, Skill development, healthcare and cluster development for long term and sustainable impact. 2. Inter alia, the Applicant is working with various State or Union Territory Governments to promote computer training among the students and teachers of the government and government aided higher secondary schools under the Informat
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, a nationwide Information and Communication Technology in Schools ( ICT in Schools ) Scheme was introduced to replace the existing ET and CLASS schemes. Thereafter, in the year 2012, Department of School Education and Literacy framed nationwide guidelines under National Policy on ICT in School (hereinafter referred to as the new policy) for implementation of ICT in School Scheme 5. ICT in Schools visions to transform all the Government and Government aided schools into smart schools, where each school should have a computer lab and students are provided with premier computer training. In addition to computer training, ICT in Schools also provide for encouragement of usage of digital medium to impart education in other subjects and to create capability in terms of teaching staff enabling the schools to fully implement ICT in Schools. Mode of Implementation 6. As discussed above, this new policy framed by the Central Government endeavors to provide guidelines to assist the States in opt
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cheme in an effective manner. Thus, primary responsibility of implementing ICT Projects is on the State or Union Territory Governments. 8. However, while framing the policy, standards, norms, etc. for implementation of ICT Projects, the State or Union Territory Governments would be guided by the national level policy framed by the Ministry of Human Resource and Development, Government of India. This is to ensure uniform and high standards, optimum utilization and cost-effective implementation of ICT Projects. Thus, the State and Union Territory Governments have to implement Projects in accordance with the guidelines issued by the Central Government in this regard. 9. As the State or Union Territory Government is required to implement ICT Projects in accordance with the guidelines issued by the Central Government, almost all states have been following the PPP model by sourcing out the ICT Project work to the private parties under the BOOT model (as suggested by the Central Government).
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backup facilities, LAN, etc.), maintenance of equipment and provision of computer training services for 5 years in 5000 schools divided in 10 zones on the BOOT Model basis. 13. The Applicant was selected vide Letter of Award accepted on March 26, 2013 to execute the contract in 3 zones i.e. 1590 schools. Accordingly, the Applicant entered into an agreement with DE(S&HS) on 13th November, 2013 (hereinafter referred to as the agreement ). Activities to be undertaken by the Applicant 14. In terms of the agreement, DE(S&HS) would arrange the necessary minimum constructed rooms/ space in each school for setting up computer labs and the Applicant would carry out the necessary work viz. flooring, furniture and fixtures, etc. for preparing each site to be used as an ICT lab. 15. Further, as per the specifications laid down in the Annexure-I and Annexure-IA to the agreement and the decision of the technical committee, the Applicant would procure the requisite number of IT equipment i.e
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uding the headmaster/headmistress of the school in computer aided learning and computer education with the usage of available ICT infrastructure. Further, the applicant shall impart technical training to the subject teachers for a period of ten days per year for normal operation, installing and use of textbook based educational software, computer education software, additional educational software, school management software, common software applications. 18. Moreover, it is also the responsibility of the Applicant to maintain and upkeep the ICT labs in proper working conditions for the entire contract period at its own cost. For this, the Applicant would have to provide requisite manpower to carry out the necessary repairs as and when required within the time limit prescribed in the agreement. Besides, the Applicant would also appoint a help desk which will serve as a single point of contact for all ICT related incidents and service requests. Further, the Applicant shall also provide
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, entails that advance ruling may be filed by an applicant on following questions: – a. Classification of any goods or services or both; b. Applicability of a notification issued under the provisions of chis Act; c. Determination of time and value of supply of goods or services or both; d. Admissibility of input tax credit of tax paid or deemed to have been paid; e. Determination of the liability to pay tax on any goods or services or both; f. Whether applicant is required to be registered; g. Whether any particular thing done by the applicant with respect to any goods or Services or both amounts to or results in a supply of goods or services or both, within the meaning of that term. 22. The Applicant submits that the issue on which advance ruling is sought in the instant matter relates to the applicability of Sl. No. 72 of Notification No. 12/ 2017-Central Tax (Rate) dated 28.06.2017 under CGST Act to the services provided by the Applicant. The questions relating to applicability of a
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ns: Notification No. 12/2017 Notification No. 12/2017 provides for the exemption for intra-State supply of services of description as specified in column (3) of the Table, from so much of the Central Tax leviable thereon under sub-section (1) of section 9 of the CGST Act, as is in excess of the central tax calculated at the rate as specified in the corresponding entry in column (4) of the said Table, unless specified otherwise, subject to the relevant conditions as specified in the corresponding entry in column (5). 26. For quick reference, Entry No. 72 of the Notification No. 12/2017 is reproduced herein below: Sl.No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Condition (1) (2) (3) (4) (5) 72 Heading 9992 Services provided to the Central Government, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administ
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ing, Site maintenance, operation, etc. to implement ICT Projects in the government secondary and higher secondary schools in the state of Maharashtra. A detailed explanation of the activities carried out by the Applicant is already provided in the facts above (Annexure I to the present application). 31. At this juncture, it is essential to analyse whether all the above referred activities carried out by the Applicant would qualify as supply of services under the training program or not? 32. In order to answer this question, it is pertinent to understand true nature, scope and extent of the activities undertaken by the Applicant in the implementation of ICE Projects under the ICT in Schools scheme. All the activities undertaken under ICT Projects are naturally bundled 33. It has been explained in the facts of the instant matter (Para 6-9 of Annexure I to the application) that the national level policy framed by the Central Government for implementation of ICT Projects provides that the
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pective of recipient of supplies here i.e. the Government of Maharashtra or other state governments in other cases, is to receive everything together as a bundle in all the cases. In other words, the state governments want one private party to implement ICF project in a wholesome manner. 37. Therefore, in view of the industry practice and the expectation of state governments as recipient of supply, the Applicant is of the understanding that all the activities performed by the private parties under the BOOT model are naturally bundled. The basic infrastructure is being developed to provide computer training to the students or teachers 38. With the background in mind, as discussed above, the Applicant would like to highlight the fact that the basic idea of the Government of Maharashtra behind sourcing out the ICT project to the Applicant is that the Applicant should provide computer training to specific number of schools in Maharashtra for five years. Further, to be able to impart such c
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er training is also supported by the policies framed by the Central as well as State Government in this regard. 42. The vision and mission statement in the new policy provides that the scheme has been introduced in schools with an aim to promote computer literacy and technologically-aided education among the students as well as teachers. 43. The preamble to the agreement clearly provides that the supply of computer hardware, software, faculty and provision of education services under BOOT model are in pursuit to improve the quality of education in secondary and higher secondary schools of Maharashtra. 44. On a careful perusal of the new policy issued by the Central Government and the preamble of the agreement, it is abundantly clear that the prime object behind this scheme is to promote computer literacy among students and teachers. Thus, the main thrust under this scheme is to impart computer training and to achieve this, the Government is making provisions for ICT lab and other IT in
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e in the education system are not familiar with and hence, the teachers themselves requires training from those who are experts or more familiar with it. c. Even the Government lacks the basic infrastructure and it is also not technically equipped to maintain and operate the hardware and software systems installed for ICT Projects. d. Under the BOOT model, the experts in the IT fields are engaged and thus, the schools will get benefit of the expertise of the private IT vendors. e. It takes a considerable time for the computer learning processes to stabilize and the BOOT model leverages the expertise of IT vendors for the time period enough for smooth transition. 47. Thus, for the above referred merits of the BOOT Model, the Government has encouraged the State Governments to opt it for implementing ICT Projects. 48. It is to be noted that prior to introduction of the new policy, the Government of India had amended its old policy in 2011 by issuing revised guidelines of in Schools (herei
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achieve the object of imparting computer training to the students and teachers. 50. Therefore, keeping in mind the past experience, BOOT model is preferred and outright purchase of assets is kept as the last resort. The Applicant submits that the above discussion is to bring to the notice of the Hon ble Advance Ruling Authority that the focus under the BOOT model and the present agreement of the Applicant with the State of Maharashtra is on the provision of quality computer training for 5 years and not creation / supply of infrastructure. The Applicant is not providing operation or maintenance services 51. It is to be noted that in terms of the agreement, during the period of contract (i.e. 5 years), the operation and maintenance of the entire IT infrastructure, equipment is to be carried out by the Applicant on its own Cost. It is to be noted that during this period, the ownership of the equipment and infrastructure remains with the Applicant. This can be inferred from the following t
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d in the supply of operation or maintenance services in as much as operation or maintenance of self-owned equipment does not amount to supply of services to third party. 54. Reliance in this regard is placed on the decision of CMS (I) operations and Maintenance Co, Pvt. Ltd. vs. CCE, Pondicherry = 2007 (5) TMI 74 – CESTAT, CHENNAI wherein, the Hon ble Tribunal has held that the maintenance or repair services undertaken by CMS cannot be taxed under Management, Maintenance or Repair service in as much as the same are undertaken in respect of the self-owned goods and would amount to self-service. This view of the Tribunal is upheld by the Hon ble Supreme Court in CCE, Pondicherry vs. CMS (I) operations and Maintenance co. Pvt. Ltd. = 2017 (11) TMI 442 – SUPREME COURT. 55. Thus, in view of the above discussion it is clear that the entire infrastructure is owned by the Applicant and the repair and maintenance activities undertaken by the Applicant are in regard to the self-owned equipment.
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goods is taking place after the expiry of 5 years. 59. Without prejudice to the above discussion regarding supply of goods, it is submitted that even if some value is to be attributed towards supply of goods (equipment / infrastructure), the supply of goods here is ancillary to the principal supply of computer training service. As discussed above, the basic idea of the ICT project implementation is provision of computer training to specific schools in the state of Maharashtra and not procurement of equipment / mere creation of infrastructure. 60. In view of the above discussion, it is abundantly clear that the Applicant is responsible for provision of computer training for five years using the newly built infrastructure. Entry No. 72 of Notification No. 12/2017 requires that the services must be provided under a training programme. It is important to analyse if the services of provision of computer training by the Applicant can be considered to have been provided under a training progr
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repeated practice. Training : 1. preparatory discipline for participants in athletics. 2. instruction and practice in a particular skill, first aid training. (iv) Chambers English Dictionary Training 1. practical education in any profession, art, or handicraft; 2. a course of diet and exercise for developing physical strength, endurance or dexterity; (v) Oxford Dictionary of English, third edition Training means the action of teaching a person or animal a particular skill or type of behaviour 62. On a careful perusal of the above referred dictionary meaning. it can be understood that in common parlance, training is generally used to refer to practical instruction or learning process. It also means practical guidance given for developing skills or the action of teaching or giving instruction in a particular subject to enhance skills. 63. It is to be noted that under the erstwhile service tax regime, the services in the nature of commercial training and coaching provided by commercial t
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not restricted to a particular subject and it covers various subjects and areas. On the other hand, training is inculcating skills in an individual in a particular subject or field. It is further supported by placing reliance on the decision of Hon ble Mumbai Tribunal in the case of CCE, Pune – III vs. Mitcon Consultancy and Engg. Services Ltd. = 2017 (6) TMI 379 – CESTAT MUMBAI. Wherein, the Hon ble Mumbai Tribunal has held that the term education includes training. 66. In the instant case, the Applicant is engaged in imparting computer skills to the students as well as teachers. As far as students are concerned, they are taught computer as a subject wherein, various skills viz. operation of computers, using MS-Office, internet, etc. are given to them. Besides that, even teachers and headmaster/ headmistress are given skills in regard to computer-aided learning. 67. It is to be noted that the activities of the Applicant are restricted to providing skills to teachers as well as studen
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same would amount to training services for the purpose of entry No. 72 of Notification No. 12/2017. 70. It is already discussed in detail that the Applicant is engaged in providing computer related skills to the students as well as teachers. Thus, it is abundantly clear that the services provided by the Applicant viz. computer related training to the students as well as teachers under ICT Project would squarely fall within the ambit of term training used in Entry No. 72 of Notification No. 12/2017 irrespective of the tenure, syllabus, content, etc. of the Project. 71. In view of the above discussion, it can be inferred that the first pre-requisite of the Entry No. 72 of the Notification No. 12/2017 is fulfilled. The services are provided to Government of State of Maharashtra 72. The second pre-requisite of Entry No. 72 of Notification No. 12/2017 is that the services are to be provided to the Central or State or Union Territory administration. In the instant case, the agreement pertai
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overall implementing and reviewing the quality education in the government secondary and higher secondary schools across the State of Maharashtra. As the ICT Project is to be implemented in the government secondary and higher secondary school, the agreement has been entered into by the Director of Education on behalf of the State of Maharashtra. 75. It is also apparent from the definition clause of the agreement which provides that director means the Director of Education (Secondary and Higher Secondary), Maharashtra State that is acting on behalf of the Government of Maharashtra as the implementing officer in respect of ICT Project in the State of Maharashtra. Therefore, it is clear that the DE(S&HS) is an implementing authority acting on behalf of the State of Maharashtra for implementation of ICT Project. Thus, the Applicant is providing services to the Government of State of Maharashtra. 76. In view of the above, it is abundantly clear that the Applicant is engaged in providin
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of aforementioned, the Applicant seeks to enter the following question for Advance Ruling and its interpretation of the question will be as under: Question: Whether the training services provided by the Applicant are covered under the scope of Entry No. 72 of Notification No. 12/2017? Applicant s Understanding: The Applicant is providing computer training services to the Government of Maharashtra and the whole expenditure in regard to such training programme, is borne by the Central Government as well as the Government of Maharashtra, Thus, the services provided by the Applicant would fall within the scope of Entry No. 72 of Notification No. 12/2017 and thus, leviable to CGST and SGST at Nil rate. 03. CONTENTION – AS PER THE CONCERNED OFFICER No submissions have been made by the department. 04. HEARING The case was taken up for preliminary hearing on dt. 18.04.2018, with respect to admission or rejection of the application when Sh. Kapil Sharma, Advocate along with Ms. Jyoti Pal, Advoc
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the agreement entered into by the applicant with The Director of Education (Secondary and Higher Secondary), Maharashtra State (hereinafter referred to as DE(S&HS) to implement ICF project in 5000 government secondary and higher secondary schools in ten identified regions in the State of Maharashtra, 5.3 We therefore take up the issue of interpretation of afore-mentioned Entry No. 72 of the said Notification to the subject activity of the applicant for discussion and are reproducing the said Entry No which is as under:- Sl.No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Conditions (1) (2) (3) (4) (5) 72. Heading 9992 Services provided to the Central Government, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administration. Nil Nil 5.4 We observe that as per Entry No 72 pertaining to Heading 9992, Servi
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NT UNION TERRITORY ADMINISTRATION. The applicant has submitted that they are working with various State or Union Territory Governments to promote computer training among the students and teachers of the government/government aided higher secondary schools under the ICT Project. The applicant in their submissions have stated that they are engaged in single supply of computer training services to the state of Maharashtra in the form of installation, commissioning, site maintenance, operation, etc. to implement ICT Projects in the government secondary and higher secondary schools in the state of Maharashtra. They have also submitted that the ICT project is sourced from them by the DE(S&HS) for providing computer training to specific number of schools in Maharashtra for five years and further, to be able to impart such computer training, the Applicant is also made responsible for creating the infrastructure in such schools as required, which will be used by the Applicant for first five
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ct period and shall be inclusive of all taxes, duties…. Para 4.3 of the said contract says that the contractor shall supply the multimedia base computer aided learning software…. The said portions of the contracts clearly envisage a situation of supply of both goods and services and not services only. For the contract to fall under Services provided to… there should be only services rendered and no supply of goods which is not so in this case. To summarise, the applicant has entered into a contract with Maharashtra State, for a period of 5 years, for implementation of the ICT @ school project in Government and Government aided higher secondary schools across the State of Maharashtra. In the preamble of the contract it is mentioned that In its pursuit to improve the quality of education in Secondary and Higher Secondary schools of Maharashtra, the supply of computer hardware, software and connected accessories, Faculty and provision of IT Education Services in Government Secondary
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ssary infrastructure in schools for implementation of ICF project. Hence from the terms of the Contract, we find that the applicant is not just providing a supply of Service but is also providing a composite supply of Goods i.e. hardware and network equipments, printers, scanners, power equipments, and also imparting training on use of such equipments as per the syllabus prescribed (The said tender was for the supply of computer hardware, software and connected accessories along with the site preparation (i.e. vinyl flooring, furniture and fixtures, electrical fittings, power backup facilities, LAN, etc.), maintenance of equipment and provision of computer training services for 5 years in the various schools). Thus, it will be incorrect to dub the entire project as a training programme. It is rather a composite supply of goods and services, not naturally but artificially bundled having distinctly separate components with distinct value attributable to each of the components. B. SERVICE
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g of manpower in the form of teachers, etc. 4. Training the teachers and the students to create digital awareness. Further, we find that the applicant has stated that they are imparting computer skills to the students as well as teachers Also we see that the contract is for the supply of computer hardware, software and connected accessories along with the site preparation (i.e. vinyl flooring, furniture and fixtures, electrical fittings, power backup facilities, LAN, etc.), maintenance of equipment and provision of computer training services for 5 years in 1590 Govt, and Govt. aided high schools of Maharashtra under ICT @ school project for a certain contract value. Thus, the contract is clearly for supply of goods and services including training. It is a composite supply having distinctly identifiable components with distinct value attributable to each of the components. There is no doubt that the applicant has provided computer training service as part of the contract, but the said s
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n/pre-requisite is also not satisfied. C. SERVICES SUPPLIED FOR WHICH THE TOTAL EXPENDITURE IS BORNE BY THE CENTRAL GOVERNMENT, STATE GOVERNMENTWNION TERRITORY ADMINISTRATION. We find from a plain reading of the terms of the contract that payment for the work done is to be made by DE(S&HS) which is a department of the State Government. Thus the source of funding the expenditure is the State Government. Thus there is no dispute in respect of fulfillment of this condition but as per discussions above, the other two conditions of Notification are not satisfied. 5.7 Thus we find that when the language of a taxing statute is clear, if the conditions of supply falls within the four corners of statute allowing exemption, it is to be exempted. If not, tax is to be levied. In the present case all the conditions of Entry No 72 of the Notification No. 12/2017 have not been fulfilled and therefore there is no question the applicant being eligible for exemption on the basis of the said Entry. 0
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