2022 (11) TMI 743 - HC - GST
Refund claim of un-utilized Input Tax Credit (ITC) - zero rated supplies of services without payment of Integrated Goods and Service Tax - Intermediary Services - export of services or not - place of provision of services.
Whether the petitioner would be covered under the expression “intermediary” as defined under the provisions of the IGST Act and consequently the BPO services rendered by the petitioner under the MSA be treated as “intermediary services”?
HELD THAT:- Section 2 (6) of the IGST Act lays down the conditions which need to be fulfilled for qualification of a service as “export of services”. A conjoint reading of Section 13 (2) and Section 13 (8) clarifies the manner for determining the place of supply of services where location of supplier or location of recipient is outside India. Generally, “place of supply” of services is the location of the recipient, except in case of certain specified services. For “intermediary” services, the place of supply is the location of the supplier - Section 54 of the CGST Act prescribes the manner in relation to claiming refund by tax payers, mainly covering the eligibility and prescribed timelines for filing the refund claim application. A tax payer engaged in export of services without payment of GST is eligible to claim refund of unutilized input tax credit.
A bare perusal of the recitals and relevant clauses of the MSA do not in any manner indicate that petitioner is acting as an “intermediary” so as to fall within the scope and ambit of the definition of “intermediary” under Section 2 (13) of the IGST Act. Such clauses cannot also be interpreted to conclude that the petitioner has facilitated the services. The said clauses are in relation to the modalities of how the actual work would be carried out and do not in any manner establish that the petitioner was required to arrange/facilitate a 3rd party to render the main service which has actually been rendered by the petitioner.
The impugned order dated 15.02.2021 (Annexure P-18) holding the petitioner to be an “intermediary” under Section 2 (13) of the IGST Act, cannot sustain - Petition allowed.