Circular No.173/2022

[Ethirajan Parthasarathy]

A Supplier is engaged in works contract service and is entitled to concessional rate of 12% for such contracts to local bodies.

Most of the materials needed for executing the state supply attract GST at 18% and also 28%.

Circular no 173/ dt 06/07/2022 provides for refund of accumulated ITC on account of outward supply at a concessional rate.

Most part of the circular gives emphasis on applicability of this circular only for supply of goods at concessional rate. However there is reference of outward services at concessional rate in the last but one line of para 4 of the said circular.

Can experts confirm whether service provider are also entitled to benefit conferred by Circular no. 173/ dt 06/07/2022.

[Shilpi Jain]

The refund under inverted duty structure under section 54(3) is available only for the inputs used in making the supply and not for input services (as was held by the SC in VKC Footsteps - 2021 (9) TMI 626 - SUPREME COURT).

There is no restriction that the outward supply has to be goods. Hence, this accumulated credit refund will be eligible for outward service supplies.

The refund should be eligible as per the section.

[Shilpi Jain]

Also to note that the restriction for inverted duty refund is restricted for services under entry 5(b) of Schedule II [Notification No. 12/2017-Integrated Tax (Rate), dated 28-6-2017]]. Hence, other works contract services this refund should be eligible.

[Amit Agrawal]

I agree with Ms. Shilpi Jain.

[Amit Agrawal]

Just to add to my above post:

In view of recent amendment u/r 89 (5) w.r.t. change in formula prescribed therein, refund of ITC against input services are also now-onwards made available against inverted duty structure for output supply of 'eligible' goods, services or both.

So, to that extent, apex court ruling in case of UNION OF INDIA & ORS. VERSUS VKC FOOTSTEPS INDIA PVT LTD. [2021 (9) TMI 626 - SUPREME COURT] is no longer applies.

[Shilpi Jain]

The refund against input services is still not available. They have only tweaked the formula to the extent to acknowledge that the ITC balance is used from both of inputs and input services to even pay the taxes of the inverted supply

[Amit Agrawal]

By tweaking the formula, I believe, one will be getting proportionate refund against ITC availed on input services as well.

[Amit Agrawal]

I re-visited my position.

By tweaking the formula, no doubt, one will be getting higher refund - as compared to position before amendment - where taxpayer is availing ITC against input services.

But, this additional refund should technically still be regarded as 'refund' for 'ITC on inputs' and not for 'ITC against input services'.

I thank Ms. Shilpi Jain for pointing out this.

AI Summary

Inverted duty refund available for eligible works contract supplies, while entitlement for input services remains legally contested after formula change. Refund under the inverted duty structure is available in respect of outward supplies at concessional rates and is tied to ITC on inputs used in making the supply. The circular does not limit outward supply to goods, so eligible outward services (including most works contract services) can qualify. A recent amendment to the refund formula acknowledges use of both inputs and input services to discharge tax, producing higher refunds, but commentators disagree whether that amendment creates a standalone refund entitlement for ITC on input services or simply increases refunds attributable to inputs.