AI Drafter 
TaxTMI 
TaxTMI 
2019 (7) TMI 1475
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..../B-76 dated 26.07.2018. = 2018 (12) TMI 1006 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA. BRIEF FACTS OF THE CASE A. The Appellant is a private limited company incorporated under the Companies Act, 1956. It is a direct and indirect subsidiary of Sabre Asia Pacific Pte. Ltd. (hereinafter referred to as 'Sabre APAC'), a leading provider of travel solutions and services across the globe. B. Sabre GLBL Inc., an affiliate of Sabre APAC and Sabre India, has developed a global distribution system which uses a Computer Reservation System Software ('CRS Software') which it owns and operates. The said CRS Software performs various functions including airline seat reservations, scheduling, booking for a variety of air, car and hotel services, automated ticketing and fare displays, etc. C. Sabre GLBL Inc., had granted to Sabre APAC - located in Abacus Plaza, 3 Tampines Central 1, #08-01, Singapore 529540, a non-exclusive right to market and promote the CRS Software for specified Asia Pacific jurisdictions. Sabre APAC has further been authorized to sub-license certain parts of its marketing rights and obligations to local-country distributors engaged in the marketing and promotion o....
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....m them to begin the process for activation of the CRS Software following the creation of the Pseudo City Code; • If the subscriber meets all the criterion set forth by Sabre APAC for subscription, it is registered successfully and a Pseudo City Code is allotted in its favor. Once the Code is allotted and the setup is activated, the Appellant's engineers install user interfaces to access the CRS Software in the subscriber's computer systems. In this manner, once the organizational and work-flow analysis is complete, the Appellant undertakes reporting of the results in the SCMS owned by Sabre APAC. Consequently, the scouting of potential subscribers and the said organizational and work-flow analysis of such potential subscribers are the deliverables by the Appellant which is submitted in the SCMS system in the form of a non-binding request. Herein, the responsibility of the Appellant, stands completed on the identification of the potential subscribers to Sabre APAC. Subsequently, their responsibility of providing marketing support services (e.g. installation of interfaces to the CRS Software, consultancy, assistance, provision of information services, etc.) relatin....
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....ectly enters into contract with national marketing companies to undertake various services including marketing of the CRS software, support services, PR promotion, etc. The Appellant would provide information for purpose of identifying the potential customers to facilitate license of CRS Software within the territory of India and also provide marketing support once the subscribers registered successfully. Further, the Appellant would also help Sabre APAC in disseminating details of CRS Software through promotions, sponsorships, etc. 3. Right to market CRS Software within the Asia Pacific region Sabre APAC has been sublicensed the right to market and promote CRS software within the Asia Pacific region. It has also been sub-licensed its marketing rights to local-country distributor. The Appellant has been granted the non-exclusive right to market and promote CRS Software within the territory of India. Pursuant the same, the Appellant identifies potential customers, demonstrates offerings, etc. In context with the scope and explanation of Para 2,3 and 2.4 of the said agreement, it is evident that the Appellant has the right to negotiate and execute agreements with Subsc....
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.... the Territory Decision making based on inputs received from the Appellant Advise Sabre APAC on any changes in market, organization, any political, financial, legislative, industrial or other events in within the prescribed territory of India. J. Further, Article 11 of the Agreement provides that there is no partnership or agency activity performed by the Appellant. The relevant Article is reproduced as below for ready reference: ARTICLE 11 No Partnership/Agency Nothing in this agreement is intended to or shall operate to create o partnership or joint venture of any kind between Sabre APAC and Sabre India, or to authorize either Sabre APAC or Sabre India to act as an agent for the other, and neither Sabre APAC or Sabre India shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including, without limitation, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). K. Thus, the relationship of the Appellant and Sabre APAC established by the Agreement is on principal to principal basis and there is no relationship by way of an agent, brok....
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....itating the service. In this regard the appellant wishes to explain the outline of digital marketing which is different from conventional marketing. The use of hardware and technology provided by the principal in this case Sabre APAC Singapore has to be used to register the prospects for the use of software. These prospects turn up after showing interest based on the sales promotion activity undertaken by the Appellants. The scheme of activity identified in box SL No: 5 and 6 under Para (l) above in the statement of facts clearly establishes the nature of the marketing activity undertaken by the Appellants. 2. The Appellant submits that they undertake sales promotion and marketing support activities to advance the business of Sabre APAC in India. This includes marketing support services such as PR, promotions, sponsorship, special events and trade shows, as well as any other services necessary to perform its obligations under the Marketing Agreement. Such services are provided with the aim to make the CRS Software the reservation system of choice for subscribers and to strengthen the subscribers trust in the brand 'Sabre' so as to augment Sabre APAC's business in India. 3. Th....
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....udents enrolled through the Appellant. The Appellant, therefore, represents the University in the territory of India and acts as its recruitment agent. In fact, Clause 2.1 of the Background forming part of the Agreement clearly says, "The University engages the Education Agent to be its representative to perform the Services from the commencement date in the Territory and on the terms set out in this Agreement until the Expiry date." 't is, therefore, clear that whatever services the Appellant provisions are provided only as a representative of the University and not as an independent service provider. The Appellant aggrieved by the said ruling appealed to the Appellate Authority wherein the appellate authority vide 01/WBAAAR/Appeal/2018 dated 24-07-2018 = 2018 (8) TMI 392 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL had held as below: The Appellant in the instant case was free to refer students to Australian Catholic University (ACU) or any other University of its choice. Further the fee paid to the appellant was not tied to the promotional activities or expenses incurred to promote courses of ACU but as a percentage of fee paid by the students who got admitte....
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.... whether the consideration is received by the Appellants as a function of sale or independent of the sale. The latter is the case in the present appeal because irrespective of whether the sale is made or any takings are generated the entire cost of operations of the Appellant will be reimbursed with the mark up. There is no obligation to generate any sale and this is the most distinguishing feature vis a vis the other two AARs mentioned above. Further, no amounts are collected from the potential customer and on the contrary as stated in Para 2.3 and 2.4 of the agreement, the incentives are provided by the appellants on its own to promote sales. 8. The appellant does not facilitate or undertakes any such arrangements to supply goods or services with respect to the subscribers in India It is submitted that the Marketing Agreement between the Appellant and Sabre APAC does not intend to operate so as to create a partnership or a joint-venture between the Appellant and Sabre India. It is a contractual relationship between two distinct entities for the supply of services from India and the receipt of the same in Singapore. Furthermore, neither does any clause of the Marketing Agree....
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....he Hon'ble Supreme Court in CIT, Udaipur Rajasthan vs McDowell & Co. Ltd. Civil Appeal No: 2939 of 2006 SC at Para 10. = 2009 (5) TMI 28 - SUPREME COURT 10. Therefore, the appellant submits that Article 11 of the agreement quoted at para I of the order is completely ignored by the Ruling of the learned Authority and this strikes at the very basis of saying that the arrangement is that of broker or agent. 11. No role in negotiating the terms of subscription. 11.1 The appellant submits that the ownership of the software cannot be the basis to decide intermediary or otherwise. The test of intermediary has nothing to do with ownership of what is dealt with. The appellant submits that the unique feature of digital marketing as explained herein earlier is to carry on promotion and marketing activities without the ownership of the software. The ruling made on the grounds that the appellants are not providing services on their own but on account of Sabre APAPC merely because they do not own the software, is legally untenable in as much as the appellants have no role in negotiating the terms of subscription or conclude the same. This is evident from the submissions made before the ....
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....the learned authority in the impugned ruling. 13. The role of the appellants is to popularise the brand which induces the customers to show interest. 13.1 The learned authority in the order, at para 5 sub para 6, has stated as follows. Admittedly, the Appellant also undertakes sales promotion and marketing support activities to advance the business of Sabre APAC in India by way of giving marketing support services which includes activities such as PR, promotions, sponsorship, special events and trade shows, as well as any other services necessary to perform its obligations under the Marketing Agreement and to make the CRS software the reservation system of choice for subscribers and to strengthen the subscribers trust in the brand Sabre so as to augment Sabre APACs business in India. 13.2 The appellant submits that the learned authority has placed in the above observation that the sale promotion is the responsibility and include exhibitions etc. Quite contrary to the above position as observed at para 5 sub para 15: that "nowhere the agreement provides that the customers can come on their own to Sabre India". The order has erroneously concluded that the customers are un....
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....goods or services, the recipient of goods or services and a facilitator. The Section 2(13) evidences the establishment of a link between all the three parties which is absent in the facts of the present case. 15.4. An intermediary in terms of Section 2(13) of the IGST Act is extracted as below: 'intermediary" means a broker, an agent or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account. 15.5. According to the Webster's Encyclopedic Unabridged Dictionary of the English Language the term "arrange" means "to prepare or plan". Further the Black's Law Dictionary, 9th Edition defines the term facilitation as the act or an instance of aiding or helping. In the facts of the present case, the Appellant provides the services to Sabre APAC on principal to principal basis with the only intention of promoting and marketing of CRS Software in India. 15.6. The above definition of intermediary has following three parts: • Such person should be a broker or an....
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....me called' is the principle of Ejusdem Generis. The application of this Rule is necessitated because of the use of a general phrase preceded by specific words. Ejusdem generis is a rule of interpretation that where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items. 15.11. Thus, applying the interpretative rule of Ejusdem Generis, the phrase 'by whatever name called' will include a person in the same genus as that of a broker or an agent. In other words, the phrase 'by whatever name called', will mean a person who is also appointed in a representative capacity. 16. No question of altering any service as the appellants service to the principal are independent of the supply by Sabre APAC to the customers 16.1. The appellant submits that the impugned order at para 5 under sub para 13 states that an intermediary can be a broker, an agent or any other person and either facilitates the supply of goods and/or services between two or more persons and such intermediary cannot change the nature of supply as provided by the principal. The Marketing Agreement does not requ....
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....as the very purpose of sales promotion is to get customers interested. The services are provided to the general public and interested persons are then pursued. This is with the aim to make CRS software the reservation system of choice for the subscribers and to strengthen the subscribers trust in the brand so as to augment Sabre APACs business in India. The appellant further submits that the role of Sabre India is to popularise the brand as mentioned earlier, Sabre APAC directly rejects or accepts the subscribers' application. 18. There can be no service on own account to the principal without the knowledge of the software. 18.1. The learned authority has further held that the appellant is ought to be unaware of the functions and operations of the software for their activity to stand outside the ambit of intermediary. The observation made by the learned authority is unsustainable in as much as the service provided by the appellant to the principal cannot be on its own account without the knowledge of software. Therefore, on this ground also, the impugned ruling is liable to be set aside. 18.2. It is submitted that the Marketing Agreement dated 31 October 2016 between the A....
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....on given under Paragraph 5.9.6 of the Education Guide, 2012 issued by C.B.E, & C. Relevant portion is extracted as under; Similarly, persons such as call centers, who provide services to their clients by dealing with the customers of the client on the client's behalf, but actually provided these services on their own account', will not be categorized as intermediaries. Appellant relying on above paragraph submitted that call centers, by dealing with customers of their clients, on client's behalf, are providing service to their client on their own account Similarly, Appellant is providing business support service such as marketing and other allied services like oversight of quality of third party customer care centre operated in India and payment processing services, on behalf of GoDaddy US. Therefore, these services provided by the Appellant to GoDaddy US cannot be categorized as intermediary or services, as intermediary service." The views expressed by the rulings of AAR have great persuasive value as held by this Hon'ble Tribunal in The Bombay Flying Club vs Commr of Service Tax Mumbai-II 2012 TIOL 841 CESTAT Mum = 2012 (7) TMI 669 - CESTAT, MUMBAI at p....
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....ppellant educates the subscriber about the software which they would not have known if the appellant was not present as an intermediary between them and the owner of CRS Software. This is contrary to the facts on record. 18.10. In summary, the services rendered by the Appellant in pursuance of the Marketing Agreement dated 31 October 2016, do not qualify as intermediary services for the following reasons: i) Services provided by the Appellant only involve standalone activities such as market survey, advising Sabre APAC on marketing strategies, conducting promotional activities and responding to prospective queries that may arise out of the same. ii) In any case, the Appellant does not arrange or facilitate any supply of goods or services inter alia due to the following reasons: The Appellant cannot conclude the contracts on behalf of Sabre APAC or to make any commitment on the behalf of Sabre APAC as an agent or otherwise or to bind Sabre APAC in any respect. • The Appellant does not have any authority to allow the creation of the Pseudo City Code in favour of the subscriber to grant access to the CRS Software. • The appellant....
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.... no remuneration, fee or any other consideration received by the Appellant from anyone in India including the Subscriber namely travel agents in connection with the marketing activities under the Agreement. 19.2. It is submitted that in the facts and circumstances of the present case, in the impugned findings that the supply of the Sabre India to Sabre APAC is intermediary in nature and thus is not on their own and hence concluding that the said intermediary services cannot be treated as export of services under the provisions of GST laws is completely erroneous and unsustainable. In view of the facts, the Appellant submits that the various services rendered by them to Sabre APAC would remain excluded from the Central Goods & Services Tax Act 2017 and the Maharashtra Goods & Services Tax Act 2017 (hereinafter referred to as "Said Acts") since the same would qualify as export of services as defined under Section 2(6) of the Integrated Goods and Service Tax Act, 2017 (hereinafter referred to as 'IGST Act') read with the said Acts. in order to substantiate the said proposition, it is necessary to explain the provisions prescribed under the GST law which are analyzed as follows: ....
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.... Deciding the disputes involves, according to Dias on Jurisprudence, knowing the facts, knowing the law applicable to those facts and knowing the just way of applying the law to them, If any of the above mentioned ingredient is not satisfied, one gets a wrong verdict." 19.7. Further the observation in the Impugned order is that the appellant being the supplier of service located in India and the recipient of Service i.e., the supplier of goods located outside India, application of Section 13(8) (b) of the said Act, as per which the place of intermediary services shall be the location of the supplier of services is erroneous and flawed. In this regard the Appellant submits that the incidence of GST will follow the destination principle and the tax revenue will accrue to the state where the goods or services are consumed. For this reason only, specific provisions have been framed under the IGST Act for the determination of the place of consumption of goods and services. In this manner, for supply any services where the location of the supplier or the location of the recipient is located outside India, the place of supply would be determined as per Section 13 of the IGST Act. The s....
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....of the IGST Act which reads as follows: "Explanation 1.-For the purposes of this Act, where a person has,- (i) an establishment in India and any other establishment outside India; (ii) an establishment in a State or Union territory and any other establishment outside that State or Union territory; or (iii) an establishment in a State or Union territory and any other establishment being a business vertical registered within that State or Union territory, then such establishments shall be treated as establishments of distinct persons. 19.10. Taking the above into consideration, it is relevant to examine the conditions for export of services as prescribed under Section 2(6) of the IGST Act in the present case: i) The supplier of service is located in India: The Appellant is a service provider located in India and all its distinct branches are located within the territory of India as well. Further, the Appellant has obtained GST registration for each of the distinct locations as per the provisions of the CGST Act. ii) The recipient of service is located outside India: As per the Marketing Agreement dated 31 October 2016, the Appe....
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....he Appellant satisfies the conditions (i), (ii), (iv) and (v) prescribed above as the supplier of service i.e the Appellant is located in India, the recipient of service i.e., the Sabre APAC is located outside India, payment of supply of the Appellant's service is received in convertible foreign exchange and supplier of service and recipient of service are not merely the establishment of a distinct persons in accordance with Explanation 1 in Section 8 of the IGST Act. The appellant also satisfies condition (iii) above as the place of supply of Sabre India is outside India in terms of discussion as below: i. The services supplied by the Appellant will qualify under Section 13(2) of IGST Act. The place of supply of service provided by Appellant to Sabre APAC located at Singapore shall be the 'location of recipient of service' in terms of Section 13(2) of the IGST Act (the default rule) as a supply of services by the Appellant does not qualify in the specific place of supply rules prescribed under Section 13 of IGST Act. Therefore, the services such as marketing, promotion and distribution services in relation to CRS software is supplied by the Appellant in India to Sabre APA....
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.... consideration of the submissions made relating to the activities performed and also the legal aspects thereto has caused grave hardship to the Appellant. 20. THE SERVICES RENDERED BY THE APPELLANT IS CLASSIFIABLE AS A COMPOSITE SUPPLY AS PER THE TERMS OF SECTION 2(30) OF THE CGST ACT: 20.1. It is submitted that under the Marketing Agreement dated 31 October 2016 with the Sabre APAC, the Appellant provides in an integrated manner, a bundle of services in relation to marketing and promotion of CRS Software within the territory of India which includes advertising, identification of potential business opportunities, demonstrating offerings, consultancy, promotion, sponsorships and other related support services necessary to perform its obligations under the terms of the agreement. 20.2. Ail the services rendered by the Appellant are provided in conjunction with each other with the ultimate aim of providing better customer experience leading to the establishment of a trust with the subscribers in India, which would collectively work towards augmenting the business of Sabre APAC in India. Herein, the supply of services like consultancy, promotion, sponsorships and other related....
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....y bundled and supplied in conjunction with each and can be classified as a 'composite supply'. 20.7. In light of the above detailed analysis and discussions, it is submitted that, the services provided by the Appellant are limited to marketing, promotion, distribution activities and other support activities. Personal Hearing 21. A personal Hearing in the matter was conducted on 28.03.2019, wherein Shri S. Thirumalai Advocate, representative of the Appellant, as well as Shree Durgesh Salwe, Asstt. Commissioner, appearing as jurisdictional officer, reiterated their written submissions. Discussion and Findings 22. Heard both the parties and have also gone through the facts of the case and written submissions made by the Appellant as well as by the Jurisdictional officer. On perusal of the entire case records, placed before us, the moot issue is, whether the entire gamut of services, being provided by the Appellant to Sabre APAC, their parent company located in Singapore, can be construed as composite supply wherein the principal supply is the supply of intermediary service, or otherwise. 23. To decide this, we will first discuss the nature of all the services, provid....
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.... Marketing Agreement dated 31 October 2016: • Accordingly, while marketing access to the CRS Software, the sales team of the Appellant approaches potential subscribers in India to whom they explain the features of the CRS Software and the flexibility of same to integrate with the potential subscriber's system for smooth functioning; • Thereafter, in the event of a positive response, the Appellant scans the credentials and the business potential of the subscriber to whom it proposes to market the CRS Software; • Based on an organizational and workflow analysis of the subscriber and following a background check of their prior activities, the Appellant logs on a request into the system through the website maintained by Sabre APAC called Subscriber Communication Management System ("SCMS"). This is an automated process wherein a request is placed by the Appellant to create a Pseudo City Code, which is a system designation which allows tracking activity of the subscriber in the CRS Software; • Simultaneously, provided the subscriber agrees to use the CRS Software, order forms are collected from them to begin the process for activation o....
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....ut all the activities as per the said Agreement, Appellant is arranging for the supply of services, which, in the instant case, is online information and database access and retrieval services' (OIDAR Services) provided by Sabre APAC, by way of identifying the potential subscribers. 26. It is further submitted by the Appellant that their responsibility of providing marketing support services (e.g. installation of interfaces to the CRS Software, consultancy, assistance, provision of information services, etc.) relating to the CRS System arises only upon Sabre APAC deciding to accept the potential customer based on the analysis provided by the Appellant. Thus, on perusal of this very submission of the Appellant, it is adequately clear that the Appellant is facilitating the supply of the online information and database access and retrieval services' (OIDAR Services), which is provided by Sabre APAC, their parent company to the potential subscribers, which are eventually identified by the Appellant as described and submitted above by the Appellant themselves, as the activities of installation of interfaces to the CRS Software, consultancy, assistance, provision of information servic....
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....ess of supply or receipt of goods or services or both on behalf of another. Now, by applying this proposition in the instant case, it is revealed that the Appellant is carrying on the business of supply of services, in this case OIDAR Services, which is actually provided by Sabre APAC, their parent company, by performing the activities of 'identification of potential subscribers' and initiating the process of subscription with respect to the Sabre System i.e. CRS Software, by logging request on the Sabre APAC website and by providing the outcome of the organisational and work flow analysis as well as background check of their credentials and prior activities of the potential subscribers, on behalf of Sabre APAC, another person/entity. Thus, Sabre APAC takes the decision of the providing subscription to these potential subscribers on the basis of the above-mentioned reports, which are prepared and uploaded by the Appellant on SCMS (Subscribers Communication Management System), owned by Sabre APAC. Thus, it is established that the Appellant play a key role in the supply of the OIDAR Services to the subscribers of the Sabre System, on behalf of another person, in the present case Sabr....
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....E AUTHORITY FOR ADVANCE RULING, WEST BENGAL and MAH/AAAR/SS-RJ/11/2018-19 Dated October 23, 2018 = 2018 (10) TMI 1517 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA to corroborate their argument. So far as the Ruling pronounced by the West Bengal AAAR is concerned, we are of the opinion that we are not bound by the observation by Hon'ble Members of the W.B. AAAR. Further, as regards the Ruling pronounced by the Maharashtra AAAR, it is observed that facts of the present case are not congruent to the facts of the case involved in the cited AAAR Ruling and hence the said ruling is not applicable in the instant case. 34. As regards the Appellant contention that they do not facilitate or undertakes any such arrangements to supply goods or services with respect to the subscribers in India referring to the provision made in Article 11 of the said Agreement which says that: "Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between Sabre APAC and Sabre India, or to authorize either Sabre APAC or Sabre India to act as agent for the other, and neither Sabre APAC or Sabre India shall have authority to act in the name ....
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....ermediary" has to be construed ejusdem generis and must fall within the genus viz. broker, agent, or any other person as held by the Hon'ble Supreme Court in CIT, Udaipur Rajasthan vs McDowell & Co.Ltd Civil Appeal No: 2939 of 2006 = 2009 (5) TMI 28 - SUPREME COURT. 37. Appellant, in support of their claim of, not being intermediary, have also placed reliance on the Advance Ruling in case of In Re Godaddy India Web Services Pvt Ltd [2016 (46) STR 806 (AAR)] = 2016 (3) TMI 355 - AUTHORITY FOR ADVANCE RULINGS. As regards the above cited Advance Ruling, it is opined that the said ruling does not have any implication in the instant case as the facts of the present case is different from the facts of the case, cited by the Appellant. 38. As regards the Appellant's reference to the decision of the Authority of Advance Ruling in the case of Re : Universal Services India Pt Ltd [2016 (42) STR 5855 (AAR)] = 2016 (5) TMI 750 - AUTHORITY FOR ADVANCE RULINGS, wherein the service provider providing the payment processing facilities to a domain service provider was held not to be a provider of "intermediary service" within Rule 2(f) of the Place of Provisions of Service Rules 2012, as the ....
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....red by Sabre India to Sabre APAC qualify for exclusion under the said acts as an export of service, it is stated that for deciding any supply of services as export of services, in terms of the provision of Section 2(6) of the IGST Act, 2017, which prescribes the conditions for qualification of any service to be an export of service, place of supply of service has to be determined. However, on perusal of the provisions related to the set of questions qualified to sought for the Advance Ruling as laid out in Section 97(2) of the CGST Act, 2017, it is seen that question regarding the determination of the supply of goods or services or both is not mentioned in the above said provision. Section 97 (2) of the IGST Act, 2017 is reproduced herein below for ease of reference: (a) Classification of any goods or services or both under the Act; (b) Applicability of a notification issued under the provisions of the Act; (c) Determination of time and value of the goods or service or both; (d) Admissibility of input tax credit of tax paid or deemed to have been paid; (e) Determination of the liability to pay tax on any goods or services or both; ....