TMI Blog2020 (9) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- The Board of Studies (BOS in short) is a wing created by the Institute of Chartered Accountants of India (ICAI in short). The BOS is imparting theoretical education for CA through online courses, Journals etc., to the enrolled candidates. Similarly the ICWAI is conducting classes through the counselors appointed on Honorarium as well as computer soft skills to the registered candidates. Basing on the discussions the findings are 1. The ICAI or ICMAI does not affiliate nor recognize any other education institutions for the purpose of Theoretical education, Practical training. The BOS /Counselor is imparting Theoretical education through online lectures, Practical training to the registered candidates. 2. The registered candidate is eligible to appear for the examinations conducted by the said Institutes at various level of entry points. 3. Age has no bar to pursue the course. 4. There is no prescribed duration of Course to complete like intermediate, Graduation/Post Graduation or technical education like B.Tech, B.E. ETC., 5. There are no different streams like Regular or Private Students. 6. Regular Attendance is not necessary in any college or Institution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Examinations conducted by the BOS. The Appellant cannot claim the benefit of exemption as an Educational Institution providing Education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force under the Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017. - AAAR/AP/04(GST)/2020 - - - Dated:- 28-9-2020 - SRI PEEYUSH KUMAR AND SRI NARESH PENUMAKA, MEMBER Authorized Representative : Sri Y. Sreenivasa Reddy, Advocate (Under Section 101 of the Central Goods and Service Tax Act and the Andhra Pradesh Goods and Service Tax Act, 2017). At the outset, we would like to make it clear that the provisions of both the CGST Act and the APGST 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 provisions under the APGST Act. The preset appeal has been filed under Section 100 of the Central Goods and Services Tax Act, 2017and the Andhra Pradesh Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and APGST Act ] by M/s Master Minds, Guntur (herein af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended? The Authority for Advance Ruling Andhra Pradesh in the impugned orders in AAR No.08/AP/GST/2020 dated 05.03.2020 held: 1. The applicant is not eligible for the exemption under Entry No.66 (a) of Notification No.12/2017-CT (Rate) Dated 28.06.2017, as amended as a Service provider Supply of service of education as per the curriculum Prescribed by the statutory authorities / government to the students of the applicant for obtaining Qualifications/certificates of CA-Foundation, CA-Inter, CA-Final, CMA (ICWA)-Foundation, CMA-Inter, CMA-Final and Intermediate duly recognized by the respective statutory authorities/ government. 2. The applicant is not eligible for the exemption on the Charges collected for Accommodation from the wards under Entry No. 14 of Notification No.12/2017-CT (Rate) Dated 28.06.2017. 3. The applicant is not eligible for the exemption on the Catering service and food supplied to the students Under Entry No.66 (a) of Notification No.12/2017-CT (Rate) dated 28.06.2017. Aggrieved by the impugned order dated 05.03.2020 the Appellant has filed the present Appeal, inter alia, on the following grounds which are urged without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the definition of the term 'educational institution' does not mention that only those institutes which are accredited or recognized to the statutory bodies are eligible for the exemption. Nowhere in the said Notification No.12/2017-CT (Rate) such legal requirement is prescribed that an educational institute shall be recognised or affiliated by these statutory bodies. The only condition prescribed under the GST law vide the said notification is that the education imparted should be part of curriculum and this education should lead a student to obtain a qualification recognised by any law. 5. The learned authority has erred in treating the coaching offered to students preparing for entrance examinations like ITT, EAMCET as similar to the activities undertaken by the appellant. The coaching offered to these entrance examinations does not lead to any qualification recognized by law. After passing an entrance exam such as IIT-JEE, EAMCET etc., the students need to apply for the institutes for admission basing on the rank card. In the instant case of the appellant, the students register with the ICAI, ICMAI institutes and there after obtains coaching from the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard: (a) The Hon'ble Supreme Court in Gujarat University Vs. Krishna Ranganath Mudholkar AIR 1963 SC 703 wherein it is held that the expression education is of wide import and includes all matters relating to imparting and controlling education. (b) The Hon'ble Supreme Court in the case of Sole Trustee, Lok Shikshana Trust v. CIT, (1976) 1 SCC 254 wherein the term education was held to mean: the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling. (c) The Hon'ble Supreme Court in the case of P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 wherein it was held as follows: 81. Education according to Chambers Dictionary is bringing up or training; strengthening of the powers of body or mind; culture . 82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edn., 2005, Vol. 2) education is defined in very wide terms. It is stated: Educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which is included in schedule/class of establishments which are included in Employees Provided Fund and Miscellaneous Provisions Act, 1952. Letter dt.21.11.2018 of the ESI: 1. I have to inform you that u/s 1(3) of the ESI Act the Central Govt. has made the provisions of the Act applicable to all the factories coverable under u/s 2 (12) of the Act, within the area specified in the Notification. 2. I have to inform you that the appropriate Govt. has extended the provisions of the Act, to other establishments u/s 1 (5) of the Act w.e.f. 01.05.2008 vide Andhra Pradesh Gazette Notification No. 582 dt. 14-10-2008 to those areas where ESI Scheme has already brought to force under sub-section (3) and (5) of Section 1 of the ESI Act, 1948 and shall apply to Private Educational Institutions (those run by individuals, trustees, societies or other organisations) and Medical Institutions (Including Corporate,, Joint Sector, Trust, Charitable and Private Ownership hospitals, nursing homes, diagnostic Centres, pathological labs) wherein 20 or more persons are employed or were employed on any day of the preceding twelve months, except Medical and Educational Institutions est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under GST with effect from 01.07.2017 1. As per Section 66D of the Act and as per Notification No.25/2012-ST dt.20.6.2012: 2(oa): Educational institution means an institution providing service by way of: (i) Pre-school education and education up to higher secondary school or equivalent. (ii) Education as a part of curriculum for obtaining qualification of any law time being in force. (iii) Education as a part of an approved vocational educational course. Notification No. 12/2017-Central Tax (Rate), dt 28.06.2017: educational institution means an institution providing services by way of,- (i) pre-school education and education up to higher secondary school or equivalent; (ii) education as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force; (iii) education as a part of an approved vocational education course; 13. The learned authority erred in denying the benefit of the exemption for the education provided to the students in respect of Higher Education Course i.e., Intermediate Education which is covered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd September 2020, for which the authorized representative, Sri Y. Sreenivasa Reddy, Advocate attended and made additional submissions as under: 4. Additional Submissions: 1. During the service tax regime, the appellant claimed exemption from payment of service tax since an exemption from payment of service tax on the services provided by an educational institution to its students by way of exclusion of the services under Sl.no. 66D(1)(ii) of the Negative List till 1.3.2016 and under Notification No.25/202-ST dt.20.6.2012, as amended thereafter. The term 'educational institution' is defined as follows in the said notification: Till March 2016: (on) educational institution means an institution providing services specified in clause (1) of section 66D of the Finance Act, 1994' From March 2016: 2(oa): Educational institution means an institution providing service by way of: (ii) Education as a part of curriculum for obtaining a qualification of any law time being in force. Clause (I) of Section 66D of the Finance Act, 1944 covering the educational services is as under: (ii) education as a part of a curriculum for obtaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al institution to its students, faculty and staff. The entry in the notification is as follows: 66. Services provided- (a) By an educational institution to its students, (faculty and staff. 6. The term 'educational institution' is defined in the said notification categorizing the services under three clauses. The appellant: falls under clause (ii) which reads as under: (ii) education as part of a curriculum for obtaining a qualification recognised by any law for the time being in force. 7. The catering and accommodation services provided to the students by an educational institution are also exempted vide the above Notification. 8. Since identical exemption extended to him in service tax regime is provided in GST regime also, the appellant did not pay any GST on the services provided by him to the students. The GST department had even cancelled GST registration on request by the appellant. However, the DGGI, Visakhapatnam initiated an enquiry against the appellant on the ground that he had to pay GST. Searches were conducted at the appellant premises and statements were recorded. Documents were called for and investigation is still in progre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the appellant is not an educational institution, the catering service and accommodation provided by him to the students are also not eligible for exemption. 11. The impugned Ruling is not legally correct for the following reasons: (a) The ARA should not have, in the first place, entertained the application since the issue is under investigation by DGGI and this fact was even intimated to the ARA by the appellant himself in his application. Though the appellant subjected himself for the proceedings before the ARA voluntarily, there is notes toppel against the law as held in the case of Share Medical Care Vs. Union of India [2007(2) TMI 2-Supreme Court] and hence ARA should not have gone against Section 98 (2) of the GST Act, 2017 which bars the ARA to take up the case for ruling when the issue is pending enquiry before any other authorities. In the case of RE: M/s. Karnataka Co-operative Milk Producers Federation Ltd reported in 2020 (3) TMI 73- Appellate Authority for Advance Ruling , Karnataka, though the appellant preferred appeal, the Appellate ARA held the order of the lower authority as void ab initio as it violates the provisions of Section 98 (2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution since these conditions are not stipulated in the notification. The ARA did not explain how the findings of the Commissioner of Central Tax are wrong when he referred to and discussed them in his order. (f) None of the decisions/ judgements cited and discussed by the appellant in the application was even referred to leave their discussion by the ARA in gross violation of principles of judicial discipline. g) The ARA had not granted exemption even to the Intermediate course which is a certificate issued by the state government and coaching is provided as per the syllabus prescribed by the government. h) The jurisdictional Tribunal in the case of Sri Chaitanya Educational Committee had elaborately discussed the exemption under the negative list and also under Notification No.25/2012-ST and held that even the coaching provided to the students for appearing the JEE etc., is exempted from service tax. The ARA had not explained how this decision is not relevant to the appellant's case. 12. The appellant also wishes to bring to the kind notice of the appellate authority that the reasons given by the learned ARA to pass the impugned order are dealt with by Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The above judgement is based on the High Court decision in the case of Malappuram District Parallel College Association and Ors. Versus UOI and Ors. 2005 (8) TMI 336 - High Court of Kerala where in demand of service tax on the coaching provided by the private coaching institutes called parallel colleges without any recognition with the government or affiliation with other recognized colleges for enabling the students to sit for the exams to get certificates of BA, B.Com etc., is set holding that such demand of service tax on these coaching institutes on the ground that they are not recognised etc., is discriminatory and violative of Article 14 of the Constitution of India and against the policy of the government to encourage education and also that when students who take coaching in the recognised and unrecognised colleges is to obtain the same certificate by the students, service tax cannot be demanded on the coaching centres. 14. The appellant further submits that the appellant sells books and coaching materials published by him as per the syllabus of ICAI and IAWAI to the students issuing separate bills and the value of these books shall be deducted as they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point into the course after Class XII, while Direct Entry is for those who have completed Graduation. e) A candidate can choose to pursue a Chartered Accountant (CA) course after completion of the 12th through the Foundation course option. If a person opts to pursue a Chartered Accountant course after graduation, they can directly register for the Intermediate course through Direct Entry option. f) The Registration Fee prescribed for foundation course is ₹ 9000/-, for Intermediate Course is ₹ 18000/-and ₹ 22000/- for Final Course. g) There is no defined course duration to complete CA course, however, ideally all courses of CA are completed within 5 years. The course is considered complete only after a student clears all papers of Chartered Accountancy courses. h) There is no maximum age limit for the CA course. However, minimum age should be 17 years (Class 12 pass). i) The major difference between the CA and CMA courses is that - CA degree is a core study of accounting, taxation, auditing, and finance whereas CMA degree is the study of managing budgets, costing/ pricing, assets, liabilities, analysis, and much more. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lectures, Practical training to the registered candidates. 2. The registered candidate is eligible to appear for the examinations conducted by the said Institutes at various level of entry points. 3. Age has no bar to pursue the course. 4. There is no prescribed duration of Course to complete like intermediate, Graduation/Post Graduation or technical education like B.Tech, B.E. ETC., 5. There are no different streams like Regular or Private Students. 6. Regular Attendance is not necessary in any college or Institution. The registered/enrolled candidate need not pay any additional fee in lieu of attendance for appearing examinations in Intermediate, graduation etc., In the aforesaid back ground, let us verify the contentions of the appellant basing on the decisions rendered by the various Honourable Courts. In the case of Sole Trustee Loka Shikshana Turst vs. Commissioner Of Income Tax, (1976 AIR 10, 1976 SCR (1) 461) the Honourable Supreme Court held the meaning of Education under the section 2(15) of the Income Tax Act, 1961 as under: The sense in which the word education has been used in section 2 (15) is the systematic instruction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by an educational institution to students, faculty and staff are exempt. Educational Institution means an institution providing services by way of: (i) Pre-school education and education up to higher secondary school or equivalent; (ii) Education as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force; (iii) Education as a part of an approved vocational education course. Within the term educational institution , sub-clause (ii) covers institutions providing services by way of education as a part of curriculum for obtaining a qualification recognised by any law for the time being in force. This is an area where doubts have persisted as to what would be the meaning of education as part of curriculum for obtaining qualification recognised by law . GST on services being a legacy carried forward from the Service Tax regime, the explanation given in the Education guide of 2012 can be gainfully referred to understand the meaning of the term which reads as under; What is the meaning of 'education as a part of curriculum for obtaining a qualification recognized by law'? It means that only such education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, while awarding degree, diploma or certificate or bestowing any designation, ensure that the award or designation do not resemble or is not identical to one awarded by the Institute. (3) Nothing contained in this section shall enable a University or a body to adopt a name or nomenclature which is in any way similar to that of the Institute.] Therefore, the education imparted by the Appellate would not lead to the obtaining a qualification recognised by the said Institutes. Needless to say that the Appellant is not an affiliate of the said Institutes and hence would only be referred to as a coaching institute and not an educational institution. The Acts, Rules and Regulations that govern the said two Institutions, ICAI and ICWAI lays down an elaborate system of education, practical training, special courses and multi-level examination system that finally leads to the qualification under the said Acts. As such, the candidate has to even complete the Integrated course of Information Technology i.e. ICITSS and AICITSS and practical training and clear all the Examinations conducted by the BOS. 1. The Institution is not having any recognition or affiliation to ICAI O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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