Reverse charge applicability on PSU

This query is : Resolved

Brijesh Bhatt (Querist)
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15 September 2022 Dear Sir/ Mam,
Please have a look at the below mentioned query and kindly give your view with proper explanation
Max Union(PSU) has entered an MOU with Irrigation and water resources department, Karnataka on 3rd sep 2019 for an amount of Rs. 59 crores and whereas Irrigation department i.e. the supplier has agreed to supply 94 cusec of non-potable water in bulk to the consumer i.e.from the Upper Kaveri canal through pipe line for use in Super Thermal Power Plant Near Tungabhadra, by means of cross regulator on Upper Kaveri Canal, Parallel Upper Kaveri Canal and suitable intake structure which shall be constructed by the consumer. The Max Union i.e. consumer proposed to construct a Super Thermal Power Plant at vill and Post Tungabhadra on the right bank of Upper Kaveri Canal and it has requested to the Irrigation Department, Government of Karnataka (herein after called “the Government”) for permission to draw 23 cusec water from Upper Kaveri Canal at chainage Km 900 during its runnings days according to the roster for the use of non-irrigation purpose in Super Thermal Power Plant at Tungabhadra.

As per section 9(3) of CGST Act, 2017, supply of services supplied by the Central Govt, State Govt, Union territory or Local Authority to a business entity comes under Reverse charge Mechanism and accordingly Max Union(PSU) deposited the RCM @18% on the respective payments. Till today amount of Rs. 29.00 crores has been released to the supplier and RCM @ 18% on 29.00crores amounting to Rs. 5.22 crores has been deposited as RCM U/s 9(3). In addition to that an amount of Rs. 20.00 crores has also released on 29.08.2022 for which RCM amount is pending and to be deposited on or before 20.9.2022 (if payable)

Another MOU was also entered into by M/s Max Union(PSU) and M/s Construction and Design Service(E/M), Tungabhadra Karnataka Jal Nigam (Karnataka Govt. Undertaking), (hereinafter called the second party) on 17.9.2019. The second party shall be responsible for planning, design, engineering and construction for “Design and Execution of supply of 23 cusec makeup water system by pumping of water from Upper Kaveri canal, to the reservoir of Tungabhadra STPP with other associated works” on “Deposit Work Basis”. The total cost of the work including cost of material as approved by the first party is Rs. 52.36 crores approx. As it has been written on the letter-head that it is C&DS(E/M),Tungabhadra wing, Karnataka Jal Nigam(Karnataka. Govt undertaking). Max Union( PSU) requested for submitting the demand through invoice showing GST to be paid by Max Union. After lot of discussion, It was informed that they shall not issue invoice. They informed that they shall take opinion from their GST consultant. Accordingly, they submitted the opinion. As per their opinion Karnataka Jal Nigam, construction wing i.e. Construction & Design Services, Karnataka Jal nigam is a part of Karnataka Jal Nigam to carry out any function of Municipality under article 243W of the constitution and other matters connected therewith in Karnataka state.

As per their opinion, services provided by Project Manager, Karnataka Jal Nigham, to Max Union(PSU) Falls in the category of works contract services and thus exempted in GST as the services falls in the category of functions entrusted to a Municipality under Articles 243 W which is exempted/nil rated in GST vide Entry No 4 of Notification No 12/2017 dated 28-06-2017 and therefore, No GST is to be levied/charged by the projected Manager, Karnataka Jal Nigam from Max Union and concluded that Max Union is not liable to pay tax under RCM As the work to be executed by both the agencies are same in nature and summarised position is as under
1. MOU entered on 17.9.2019 with M/s Construction and Design services(E/M) Tungabhadra wing, Karnataka. Jal Nigam(Karnataka Govt Undertaking having status of Local authority has clarified position with regard to the tax position and exempted services.
2. MOU entered on 3rd sep, 2019 with Drainage circle Irrigation and water Resources Department, Karnataka for Rs. 59 crores. They have status of Local Authority and Govt Deptt. as has been checked from GST Portal After clarification in case (1) above, the GST under RCM is not deposited. It is requested to guide/advise in case no (2) regarding applicability of GST liability