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of <h1>Delhi HC allows ITC refund for services to McDonald's USA, rules service provider not automatically intermediary under IGST Act Section 2(13)</h1> <h3>M/s. Mcdonalds India Pvt. Ltd. Versus Additional Commissioner, CGST Appeals - II, Delhi & Anr.</h3> M/s. Mcdonalds India Pvt. Ltd. Versus Additional Commissioner, CGST Appeals - II, Delhi & Anr. - 2023 (74) G.S.T.L. 271 (Del.) Issues Involved:1. Whether the petitioner is an intermediary within the meaning of Section 2(13) of the IGST Act.2. Whether the Appellate Authority's order was beyond the scope of the Show Cause Notice.3. Applicability of Sections 13(3)(b) and 13(5) of the IGST Act to the services rendered by the petitioner.Summary:Issue 1: Whether the petitioner is an intermediary within the meaning of Section 2(13) of the IGST Act.The petitioner, M/s McDonald's India Pvt. Ltd., entered into a Service Agreement with McDonald's USA, claiming the services rendered were independent and 'zero rated supplies' under Section 16 of the IGST Act. The Adjudicating Authority and Appellate Authority held that the services were intermediary services, thus the place of supply was in India, making the petitioner ineligible for ITC refund. The court noted that rendering service on behalf of another does not automatically make one an intermediary, referencing recent decisions in M/s Ernst and Young Limited and M/s Ohmi Industries Asia Private Limited cases. The court emphasized the need to identify the principal service, supplier, and purchaser to determine intermediary status, which was not adequately analyzed in the Order-in-Original.Issue 2: Whether the Appellate Authority's order was beyond the scope of the Show Cause Notice.The petitioner argued that the Appellate Authority's order was beyond the scope of the Show Cause Notice and did not arise from the petitioner's appeal. The court found merit in this contention, noting that the Show Cause Notice was broad and did not detail reasons for denying the ITC refund. The court held that the Appellate Authority could not raise additional grounds for rejecting the refund claim suo motu in an appeal preferred by the petitioner. Thus, the impugned order was liable to be set aside on this ground alone.Issue 3: Applicability of Sections 13(3)(b) and 13(5) of the IGST Act to the services rendered by the petitioner.The court examined the applicability of Sections 13(3)(b) and 13(5) of the IGST Act. Section 13(3)(b) applies where the physical presence of the service recipient or its representative is necessary. The court found that the service recipient, McDonald's USA, did not need to be physically present in India for the services rendered by the petitioner. Section 13(5) pertains to services related to events, which was irrelevant to the services provided by the petitioner under the Service Agreement. The court concluded that these provisions did not apply to the petitioner's case.Conclusion:The court set aside the impugned order and the Order-in-Original, remanding the matter to the Adjudicating Authority for fresh consideration in light of the observations made. The petition was disposed of accordingly.
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