export fo services

[Madhavan iyengar]

A indian Company X in new delhi has received a contract for submission of a quality audit report, for one of the clients based in haryana india of an overseas company B located in US.

X will raise invoice in USD and receive money in foreign exchange

Whether the aforesaid services provided by X will fall under export of services as all conditions for export will be satisfied (but doubt on performance of services will it be held that POPS is in India ????)

[PAWAN KUMAR]

As per my view, place of supply of service is in india which is different from the place of supplier, therefore it is qualify as inter-state supply and liable to IGST. Export of service is not qualify

all the conditions should satisfy for export of service :

-supplier of service is in india

-receiver of service is outside india

-service to perform outside india

-payment to received in foreign currency

-establishment of distinct person

in all the conditions, service perform in india therefore not qualify as export of service.

[Madhavan iyengar]

thanks for your reply but the recipient is the person who is receiving the service ie the quality audit report is sent to the foreign party located abroad though the services are performed in india but they dont fall under performance based services

under sec 13(2) of IGST Act the place of supply of services except the services specified in sub section (3) to (13) shall be location of recipient of service.

Since Sub section (3) to (13) are not applicable will not the above default rule apply

[KASTURI SETHI]

As per para no.5 titled, "observations" of Order dated 7.7.18 of Advance Ruling Authority Maharashtra in RE :Vservglobal Pvt. Ltd. reported as 2018 (19) GSTL.173 (AAR-GST) = 2018 (11) TMI 959 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA , to qualify a transaction of supply of service as export of services that transaction has to satisfy all five ingredients of the definition of export of services simultaneously. So in your situation the condition at (iii) of the above definition is not satisfied. Go through the whole decision carefully. It answers your query.

[Madhavan iyengar]

sirs When we talk of gst as a destination based tax the taxes will follow the goods / services here the destination of the service is the recipient located abroad, suppose let us mirror the transaction in india then definitely the destination of the services is in india.

going a step further the foreign party which receives the quality audit report will based on the report decide to do business in india and then there will be imports of those goods into india

just because the performance of the service is in india the recipient will receive the quality audit report abroad and he is consuming the services abroad

if we carry this argument the software services which are being performed in india and the recipient is abroad will also be hit ???

[KASTURI SETHI]

Dear Sh.Madhavan Ji, Pl.refer to your last para. Are you talking of OIDAR Service ? That is covered in last but one clause of Section 13IGST Act, 2017 for the purpose of determination of place of supply. I have posted the case law which squarely covers the situation already explained by you. If your service is OIDAR, then situation is entirely different. We will have to start discuss afresh.

[KASTURI SETHI]

Lawfully I agree with Sh.Pawan Kumar Ji. Practically ultimately service will be received, consumed and enjoyed outside India but we are to follow law.

[Madhavan iyengar]

ok thanks sethiji and pawanji for the good deliberation and giving a logical conclusion

[Madhavan iyengar]

sirs in this case which tax to be discharged igst or cgst /sgst the service provider is located in maharashtra and deputes his person to other state ie haryana and the service is completed and thereafter the person comes to Maharahstra base office and the report will be submitted

Further the invoice will be raised by the office in maharashtra in USD on foreign party since we cant collect the tax from foreign vendor can we arrive the amount inclusive of tax and then discharge the tax suppose we raise invoice for 100USD gross and then tax will be calculated in reverse way and discharged

[Madhavan iyengar]

Market research, survey for overseas group, parent entity, not ‘intermediary service’, constitutes ‘export of service’: AAR of Maharashtra

Fact:M/s. Asahi Kasei India Private Limited = 2019 (1) TMI 1091 - AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA (“the applicant”) is a Indian subsidiary company of Asahi Kasei Corporation, Japan ("Asahi Japan"). Asahi Japan is the flagship company of the Asahi Kasei group. Asahi Kasei group S fibers and textiles, petrochemicals, pharmaceuticals, polymers, electronic devices, home products, construction materials, health care etc. The applicant provides sales promotion and marketing support to Asahi Kasei group as the services agreement dated March 01, 2013 and Marketing Services Agreement with various group companies of Asahi Kasei group.

Issues Involved: The applicant has sought advance ruling in respect of the following questions:

1. Whether the service supplied by the applicant under the Service Agreement dated March 01, 2013 constitute a supply of "Support services" falling under HSN code 9985 "Intermediary service" classifiable under HSN code 9961/9962?
2. Whether the service supplied by the applicant under the Marketing Services Agreement dated December 1, 2012 constitute a supply of "Support services" falling under HSN code 9985 or "Intermediary service" classifiable under HSN code 9961/ 9962?
3. Whether the services provided by the applicant is an export of services as defined under Section 2(6) of the IGST Act 2017?

Held: The Hon’ble AAR of Maharashtra vide its Advance Ruling No. GST-ARA-35/2018-19/B-108 dated September 05, 2018 = 2019 (1) TMI 1091 - AUTHORITY FOR ADVANCE RULINGS MAHARASHTRAstated as follows:

1. (i) The services provided by the applicant in the nature of Research on the matter related to functioning of the holding of company such as - corporate accounting, corporate finance, corporate personnel and labour relations, corporate research and development, quality assurance and corporate intellectual property, and provide Party A with its report of the research thereon would fall under service code tariff 99859 as other support services nowhere elsewhere classified.

(ii) The services provided by the applicant in the nature of Information on Market in the territory which includes - Economic, industrial and technical information on the products falling under the category of the Products and their markets, trends and outlook together with similar information concerning such other industries in the Territory, To provide necessary assistance in business activities (including interpreting) to such representatives, To undertake market surveys of the Products in the Territory and report the results thereof to Party and Ancillary services to all above services, including, but not limited to, those services with regard to finance, accounting, and patent and legal matters would fall under service code tariff 99837 with service description market research services.

2. The services supplied by the applicant under the Marketing Services Agreement would fall under Group 99837 as Market Research Services.

3. The applicant satisfies all the ingredients of 'export of services' the service provided by the 'Marketing Services Agreement would qualify as an export of taxable service as per the definition ofSection 2(6) of the Integrated Goods and Services Tax Act 2017 "

AI Summary

Place of supply rules determine whether services performed in India qualify as export of services, affecting IGST applicability. Qualification of a service as export of services requires simultaneous satisfaction of all statutory ingredients; if performance occurs in India the condition of performance outside India may not be met and the supply may instead be treated as an inter state supply liable to IGST, whereas market research/marketing support services can qualify as export where the facts meet every element and proper service classification supports that conclusion.