AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 1454
X X X X Extracts X X X X
X X X X Extracts X X X X
....105 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA. BRIEF FACTS OF THE CASE 1. Mayank Jain ("the Appellant") is an individual exploring business opportunity in providing marketing and advisory services to the Consultant Managers in relation to the Employee Based Immigration: 5th Reference Program notified by the United States Citizenship and Immigration Services ("the EB-5 Program"). The EB-5 Program envisages that an investor is eligible to a permanent residence permit in the United State of America subject to an investment of US$ 500,000 and job creation in a commercial entity or investment fund, commonly referred to as a "Regional Centre" or a "Company", which is approved and recognized by the Government of the United States of America. "Consultant Manager" (located outside India) acts for the Regional Centre or Company enabling them to receive investments from the prospective investors. 2. Under the proposed Agreement titled as "Foreign Immigration Advisor Agreement", the Appellant shall provide two distinct services, viz., (i) Marketing services; and (ii) Handholding services, as detailed below: i. Marketing services: a. Collecting and analysing informa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9985 or "Intermediary service" classifiable under S SC 9961 / 9962 or any other heading? i. The Appellant would be providing pure marketing services to the Consultant Manager. The Appellant is an independent service provider and would be providing services at his own risk and cost. It is also expressly provided in the proposed Agreement that neither party would represent itself to be an agent of the other nor shall either party accept service of legal process or create or assume any obligation of any kind or nature whatsoever on behalf of the other party. Further, the Appellant would not have the authority to conclude or negotiate any contracts or secure any orders on behalf of the Consultant Manager. ii. In fulfilment of its obligation towards Marketing services, the Appellant would undertake the following activities: a. Planning and conducting market surveys to identify the market and prospective investors; b. Prepare reports, marketing plans, market intelligence and compile list of prospective investors; c. Formulate strategy; d. Address queries of the Consultant Manager in relation to the above; and e. Conduct sales....
X X X X Extracts X X X X
X X X X Extracts X X X X
....scrow account and pay applicable fees for the purpose of EB-5 programme. b. Assist the Consultant Manager in obtaining personal information of the qualified investor. c. Assist the qualified investor in coordinating and staffing informational meeting about EB-5 program. d. Assistance relating to documentation. e. Provide information collecting documents, filling out forms, addressing any possible issues or difficulties. f. Communicate immigration status / processing related updated to the qualified investor. iii. The Appellant would not fall within the ambit of the definition of 'intermediary' on account of the following reasons: a. The Appellant will never participate in the actual sales negotiation or profess to act on behalf of the Consultant Manager or help in concluding the investment by the prospective investor. b. The Appellant and the Consultant Manager will have no authority to create, nor will they assume any obligation on behalf of each other. The services rendered by the Appellant will be limited in this respect. Although the Appellant would assist the person of interest in filling of the forms, pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Finance Act, 1994 which has an identical definition of intermediary as Section 2(13) of the IGST Act. In this case, while deciding the matter in favor of the Appellant, Hon. CESTAT made the following key observations: * The nature of service provided by the Appellant is the promotion of business of their client, in terms, he gets commission which is covered under Business Auxiliary Service which is not the main service provided by the main service providers namely banks / university. * As the appellant did not arrange or facilitate main service i.e. education or loan rendered by colleges / banks. In those circumstances, the appellant cannot be called as intermediary. The Appellant stated that there is no change in the definition of the 'intermediary' under the erstwhile service tax regime vis-a-vis GST regime and the services provided by the Appellant is similar to the services referred in the above case. Hence, it cannot be regarded as intermediary. b. In addition to the above, the Appellant further placed reliance on the following precedents: * Godaddy India web Services Pvt. Ltd. [2016 (46) STR 806 (AAR)] = 2016 (3) TMI 355 - AUTH....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s: • it is submitted that the Applicant was of the bona fide belief that the impugned order would be received by post and did not expected an email. Consequently, the date of receipt of impugned order considered as 23 July 2019, when the Applicant received the physical copy of the impugned order. • The delay has occurred due to genuine oversight on part of the Applicant due the belief that correspondences from the Government authority is normally received vide postal services and not email. 12. The Applicant humbly submits that there has been plethora of cases wherein the Courts have taken leniency in Condonation of delay beyond 30 days. The Appellate Authority for Advance Ruling (in past) has condoned a delay of 29 days and 26 days in various cases. Reliance in this regard is place on the following decisions: * In the case of In Re T.P. Ajmer Distributors Limited [RAJ/AAAR/APP/02/2018-19] = 2019 (3) TMI 917 - APPELLATE AUTHORITY FOR ADVANCE RULING, RAJASTHAN, the Appellants submitted that there was a delay in filing the appeal because GST was a new law and the Appellant was not aware about the provisions of law and only after the advice of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rategy plan for the benefit of the Consultant Manager; Address queries of the Consultant Manager in relation to the above, as and when raised by the Consultant Manager; and Conduct sales prospection through necessary participation in industry events and provide spotlight to the EB-5 program" 16.2 Nowhere, the scope of services narrated above even remotely suggest that the Appellant acts as a middleman. It is submitted that the marketing services provided in rem cannot be construed as that of a middleman, and therefore, the observation of the AAR is based on assumptions, presumptions and surmises. 16.3 It is submitted that the as a part of the marketing services, the Appellant arranges the premises for the Consultant Manager and prospective investor to meet and negotiate/ discuss at their discretion and without interference of the Appellant. Thus, the role of the Appellant is limited to arranging meeting venue, and the Appellant does not take part in the discussion between the investor and the Consultant Manager. 17. The Appellant does not fall within the definition of "intermediary" for Marketing services or for Handholding services 17.1 The term "intermediary" is defin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er financial services are defined under section 65 (12). Such services provided to a customer by a banking company or a financial institution including a non-banking financial company or any oilier body corporate or any other person to a customer are liable to service tax under section 65 (105) (zm). The expression 'any other person' appearing in section 65(105) (zm) is to be read ejusdem generis with the preceding words. The expression 'other financial services' appearing under section 65 (12) (a)(ix) is a residuary entry and includes; those services which are normally rendered by banks or financial institutions. 4. Hence, banking and other financial services provided by a banking company or a financial institution or a nonbanking financial company or any other service provider similar to a bank or a financial institution are liable to service tax under section 65(105) (am) of the Finance Act, 1994. Department of Posts is not similar to a bank or a financial institution and hence does not fall within the category of any other similar service provider" (Emphasis supplied) 17.5 Reliance in this regard is also placed on the Hon'ble Delhi High Court decision in the case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns, the AAR erroneously held that the Appellant facilitates, and investment/ permanent residence advisory services provided by the Consultant Manager to the Indian Investor. The role of the Appellant includes arranging or facilitating meetings between the Consultant Manager and once the investor agrees to invest, the Appellant would help them in completing the formalities in correct manner so that the application is not rejected. Thus, in a way the Appellant arranges and facilitates supply of services between the Consultant Manager and the investor, for which they receive consideration from overseas Consultant Manager. 17.10 The Appellant submits that the dictionary meaning of facilitation is to make easy or easier, make something possible or aiding or helping. Thus, the dictionary meaning of facilitation is very wide and covers processing, storage, transport, advertising, sales promotion etc. all activities as each and every activity aid or smoothens supply of goods. In the instant case, the Appellant will act as independent service provider in carrying out the marketing activities for the Consultant Manager. The Appellant is acting on their volition and simpliciter providing s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tilized CENVAT credit availed on input services used for providing taxable services, inter alia, Business Research (including financial services), Market research and intellectual Property activities, classifiable under the category of Business Auxiliary Services. The Hon. CESTAT examined whether the Appellant would be regarded as an 'intermediary' in providing the aforesaid services. Hon. CESTAT observed that the appellants in the said case were themselves engaged in providing of services to their client. Hon. CESTAT observed that the appellant provided the services to customers of their Client and have no direct nexus with the customers of their client and nowhere has facilitated or arranged for the services provided to their client by third party. Therefore, the activity undertaken by the appellant do not qualify intermediary. b. M/s Sunrise Immigration Consultants Private Limited v CCE & ST, Chandigarh [2018-TIOL-1849-CESTAT-CHD] = 2018 (5) TMI 1417 - CESTAT CHANDIGARH In this case, the facts were that the Appellant provided services to foreign universities by way of preparing cases for students was questioned as not being an export but covered within the defi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity. As the appellant did not arrange or facilitate main service i.e. education or loan rendered by colleges/banks. In that circumstances, the appellant cannot be called as intermediary.........." (Emphasis supplied) Aforesaid facts are identical to the present case. In the present case also, the Appellant is nowhere providing services between two or more persons. The Appellant is providing services to Consultants who are paying fees to the Appellant. The Appellant is merely hunting the perspective investors and introduced them to the Consultants and if these perspective investors opts for EB-5 program, the Appellant gets paid which is in nature of promoting the business of the Consultants. c. Re: GoDaddy India Web Services Pvt. Ltd. [2016 (46) STR 806 (AAR)] = 2016 (3) TMI 355 - AUTHORITY FOR ADVANCE RULINGS: In this case, in addition to marketing services, the Appellant therein was also providing supervision of customer care service and payment processing services to their parent entity, GoDaddy US, a company registered and incorporated in the United States of America. After due consideration, it was held that the Appellant was not an intermediary un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces proposed to be provided by the applicant, would support the business interests of GoDaddy US in India. (Emphasis supplied) d. Asahi Kasei India Private Limited [GST-ARA-35/2018-19/B-108 dated 5 September 2018] = 2019 (1) TMI 1091 - AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA it was held as under: "The concept of intermediary under the GST Act is substantially identical to the concept of intermediary under the erstwhile service tax regime. This concept has been explained in the Education Guide issued by CBEC in the year 2012 as under: In order to determine whether a person is acting as an intermediary or not, following factors need to be considered: Nature and value: An intermediary cannot alter the nature or value of the service, the supply of which he facilitates on behalf of his principal, although the principal may authorize the intermediary to negotiate a different price. Also, the principal must know the exact value at which the service is supplied (or obtained) on his behalf, and any discounts that the intermediary obtains must be passed back to the principal. Separation of value: The value of an intermediary's service is invari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rders or maintain any stock of goods on behalf of Party A in this case. On the contrary applicant would provide service on own account to party A to improve functioning of holding company and further augment its business vis a vis sale of all products manufactured and or sold or to be manufactured and or sold in India territory. Thus we find that applicant is not a person who arranges or facilitate supply of services between two or more persons. Thus applying the test mentioned in the Education Guide to the facts of the case we can safely conclude that the proposed service would not fall to be classified as 'intermediary service'." (Emphasis supplied) 17.14 At this juncture, it is submitted that scope and nature of duties of the Appellant is substantially similar to those provided in Asahi Kasei (supra) and in the case of Sunrise Immigration Consultants (Supra). In both cases, it was held that the service provider was engaged in providing service on his own account and hence would not become an intermediary. The Appellant cannot be regarded as an intermediary as the Appellant cannot in any way change or amend or influence the agreement between the Consultant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, the Appellant will be paid a fixed amount for Marketing services and another fixed amount for handholding services, by the Consultant Manager. It is also submitted that the mere fact that the amount payable by the Consultant Manager for the Marketing services is deferred till successful investment/ repatriation by the investor does not also make it intermediary services. It is submitted that the nature of services is an independent exercise which should be judged qua the actual activities carried out thereto and cannot change color basis only the timing of the consideration. In other words, mere deferment of payment to a future time cannot change the character of service. 18.2 In this regard, the Appellant invites your attention to the following: a. The observations of Hon. Supreme Court in Union of India v. Bombay Tyre International Ltd., [1983 (14) E.L.T. 1896 (S.C.)] = 1983 (10) TMI 51 - SUPREME COURT: "......It has long been recognised that the measure employed for assessing a tax must not be confused with the nature of the tax. In Ralla Ram v. The Province of East Punjab - (1948) F.C.R. 207, AIR 19.../9 FC 81), = 1948 (11) TMI 8 - BOMBAY HIGH COURT, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., are satisfied by the Appellant in the present case. 19.2 As regards the POS, it is submitted basis the above submissions, the Appellant would not be regarded as an 'intermediary' for the purpose of GST. Accordingly, the POS would be determined on the basis of the location of service recipient. Accordingly, since the location of Consultant Manager is outside India, the POS would also be outside India. 20. The Appellant therefore submits that based on the submissions incorporated hereinabove, the impugned Ruling of the AAR is bad in law and suffers from an infirmity, and therefore, deserves to be set aside. PRAYER 21. In view of the submissions made herein above, the Appellant prays that the Hon'ble Tribunal may be pleased to: 1. Set aside the Impugned Advance Ruling No. GST-ARA-103/2018-19/B-63 dated 01 June 2019 = 2019 (7) TMI 1105 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA passed by the Maharashtra Authority for Advance Ruling, Mumbai, with consequential relief; 2. Pass an order holding that the services of the Appellant would not be regarded as that of an intermediary; 3. Pass an order holding that the services of the Appellant would qual....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eceipt of final approval of such investment from authorities. 24. Therefore, from the above, it is evident that the Applicant acts as an intermediary between the Company and the prospective qualified investors in India. Definition of 'intermediary' is contained under section 2 (13) of Integrated Goods and Service Tax Act, 2017 and the same is reproduced hereunder for ready reference: "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". 25. Important feature that can be derived from the above definition of 'intermediary' are summarized hereunder: - i. An intermediary can be a broker, an agent or any other person; ii. An intermediary is a person, who intermediates between two or more persons, i.e. either arranges or facilitates the supply of goods or services or both; iii. An intermediary cannot change the nature of supply as provided by his principal. 26. Therefore, it is evident that in c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 30. In the case of Global Reach Education Services Pvt. Ltd. [2018 (12) G.S.T.L. 387 (A.A.R. - GST)] = 2018 (4) TMI 808 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL, it has been held that "marketing services" provided to global universities are "intermediary" services. The appellate authority of Advanced Ruling in the said case [2018 (15) G.S.T.L. 618 (App. A.A.R. - GST)] = 2018 (8) TMI 392 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL have further expanded the definition and held that "even ancillary services" falls within the meaning of intermediary services. 31. Similarly, in the case of Vservglobal Private Limited [2018 (19) G.S.T.L. 173 (A.A,R. - GST)] = 2018 (11) TMI 959 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA, it has been held that back office support services, payroll processing, maintenance of records of employee provided by applicant to overseas companies, i.e., clients, after finalization of purchase/sale between client and its customer falls under the category of 'intermediary services'. Accordingly, the support services being/to be provided by applicant in the instant case to the company located abroad would be appropriately classifiable as 'interm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Company may be appropriately classifiable as 'intermediary services'. The impugned AAR Order No. GST-ARA- 103/2018-19/B-63 dtd 01.06.2019 = 2019 (7) TMI 1105 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA is therefore correct and valid in defining the activity of the Applicant as that of 'an intermediary'. Point E: 'The services of the Appellant would qualify as export of services'. Department Comments: - 34. In order to identify an activity for its qualification as an export of service and/or to determine the tax applicability of GST i.e. whether CGST & SGST or IGST is payable on any transaction, it is vital to know the place of supply of goods or services. Taxability of goods or services would be decided on the basis of the place of supply of the said goods or service. 35. The Provision of place of supply of service in case of intermediary are specifically contained under section 13 (8) of Integrated Goods and Service Tax Act, 2017 and the same is summarized hereunder for ready reference - Section 13 (8) of the IGST Act states that - The place of supply of the following services shall be the location of the supplier of services, namely: (a) S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aforesaid appeal by the appellant and the appellant has, accordingly, filed an application for the condonation of the delay vide which he submitted that the physical copy of the impugned order was received by him on 23.07.2019, and therefore, he filed the instant appeal on 22.08.2019 considering the date of receipt of the impugned ruling as 23.07.2019. However, at the time of the filing of the appeal, he was informed by the concerned registry that the date of the receipt of the impugned order would be considered as the date on which the impugned order was received by him, which would be 20.07.2019, the date on which the impugned ruling had been served electronically. Thus, this delay of 2 days has occurred due to due to genuine oversight on part of the Appellant due to his bona-fide belief that the correspondences from the Government Authorities are normally made by the Post and not e-mail. Thus, it was prayed by the Appellant that the said delay of 2 days may be condoned, pleading that grave harm or loss or prejudice would be caused to the Appellant if the condonation prayers are not accepted. He further submitted on the contrary no harm or loss or prejudice would be caused to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ine this issue, first we would like to understand the meaning of "intermediary" as provided under section 2(13) of the IGST Act, 2017, which is being reproduced herein under ready reference: Section 2 "(13) "intermediary" means a broker, on 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" 40. Thus, the definition of "intermediary" can be divided into three limbs: a A broker, an agent or any other person, by whatever name called; b such person should arrange or facilitate the supply of goods or services or both, or securities between two or more persons; c but does not include a person supplying such goods or services or both or securities on his own account. Further, the term "agent" has been defined in section 2 (5) of the CGST Act, 2017, which is being reproduced as under: (5) "agent" means a person, including a factor, broker, commission agent, arhatia, del credere agent, an auctioneer or any ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e goods or services or both himself from its own account. Thus, the definition of Intermediary as provide under the IGST Act has given utmost emphasis on the facilitation between two or more persons along with the rider that supply of goods, or, services, or, both, which are being facilitated by such intermediary, should not be undertaken by the intermediary himself. 42. Now, having clearly understood the meaning of Agent and Intermediary as envisaged under the GST Law, we proceed to examine the gamut of services provided by the Appellant to the Consultant Manager as per the subject agreement. The said gamut of activities/services, as per the subject agreement, are being reproduced herein under: a. Planning and conducting market surveys to identify the market and prospective investors; b. Prepare reports, marketing plans, market intelligence and compile list of prospective investors; c. Formulate strategy; d. Address queries of the Consultant Manager in relation to the above; and e. Conduct sales prospection through participation in the industrial events such as scientific gatherings, exhibitions, trade shows, and the like. On peru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, all these aforesaid activities undertaken by the Appellant would not be considered as supply even, as there would not be any consideration in such case, thereby, precluding the entire activities from the scope of the "supply", as envisaged under section 7(1)(a) of the CGST Act, 2017. In view of this, all these activities carried out by the Appellant for its client, i.e., Consultant Manager, which are being claimed by the Appellant as the Business Support Services, have got no relevance, when performed independently and in isolation until all these services, when combined together, culminate into the supply of facilitation services between the Consultant Manager and the prospective investors, thereby, making the entire activities of the Appellant as those of an Intermediary as conceived under section 2(13) of the IGST Act, 2017. 43. Besides the aforesaid activities, the Appellant, after the successful negotiations between the Consultant Manager and the prospective customers, provide the hand holding services to such prospective customers to initiate the process and formalities of the aforementioned EB-5 programme, in respect of which the investment consultancy services are pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also argued by the Appellant that since he is providing these business support services to the Consultant Manager from his own account, he cannot be categorized as an intermediary. It is observed that the aforesaid contentions put forth by the Appellant is erroneous, flimsy, and devoid of any merit, as there is no restriction imposed on the intermediary with respect to the supply of goods, or services, or both. Since, the facilitation activities undertaken by Appellant are the supply of services in itself, hence to conclude that the intermediary can not provide any service on his own account is preposterous notion. 45. It has been further argued by the Appellant that he does not participate at all in the negotiation between the Consultant Manager and prospective investors, as he does not represent his client, i.e. Consultant Manager in any capacity including agent. It is further argued by the Appellant that since the definition of the intermediary as provided under section 2 (13) of the IGST Act, 2017 includes the terms "Agent" and "broker", therefore, applying the legal principle of "ejusdem generis", it can be inferred that the expression "any other person by whatever name cal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....termediary in terms of sub-section (13) of section 2 of the IGST Act. 47. Now, when we compare the present case with that of the instances envisaged under Scenario II, reproduced above, it is observed that the facts and circumstances of the Appellant's case is pretty similar to those of the illustrative instances envisaged under Scenario II of the aforesaid Circular in as much as the Appellant is also facilitating the main service of Investment Consultancy/Permanent Residence Advisory Services provided by its client to the prospective customers by undertaking facilitation and support activities like arranging the venue for meeting between its client, i.e., Consultant Manager and the prospective customers including the arrangement of the translators, filling of various immigration related forms as a part of the EB-5 programme for the prospective investors after the successful negotiation, communicating with its client's customers, i.e., the prospective investors and providing them regular updates about the immigration status, addressing any possible issues or difficulties faced by the qualified investors or its client, i.e. Consultant Manager. Thus, from the foregoing, it is ampl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich are purely in the nature of facilitation between its client and its client's customer, as has been discussed above. Hence, the case law cited by the Appellant is clearly distinguishable. (ii) M/s. Sunrise Immigration Consultants Private Limited v CCE & ST, Chandigarh [2018-TIOL-1849-CESTAT-CHD] = 2018 (5) TMI 1417 - CESTAT CHANDIGARH The facts and circumstances of the aforesaid case law is different from those of the present case in as much as in the aforesaid case, the assessee, i.e., M/s. Sunrise Immigration Consultants Private Limited, is just referring the aspiring students to the foreign college and universities for the purpose of admission thereinto. Besides this, they are doing nothing, which could be said to be in nature of facilitation between the colleges/universities and the aspiring students, whereas in the present case, the Appellant is doing alt sorts of activities, which are facilitating the main services of investment consultancy between the Consultant Manager and the prospective customers. Hence, the ratio of the aforesaid CESTAT Judgment is clearly not applicable. (iii) Re: GoDaddy India Web Services Pvt. Ltd. [2016 (46) STR 806 (AA....