TaxTMI 
TaxTMI 
2021 (11) TMI 400
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing in the application for Advance Ruling filed by it before the Gujarat Authority for Advance Ruling (herein after referred to as the 'GAAR'). "Whether the educational assessment examination (ASSET) with its variants provided by the applicant to school/educational organization is exempted from payment of GST under Sr. No. 66(b)(iv) of the Not. No. 12/2017-CT (rate) dated 28.06.2017 and entry No. 69(b)(iv) of Not. No. 9/2017-Integrated Tax (Rate) dated 28.06.2017 as well as equivalent SGST Notification". 2.1 The applicant submitted in the application for Advance Ruling that it deals in the products and solutions mainly intended to be used by primary and secondary schools for the assessment and learning. ASSET is examination tool for educational assessment of student in class 3rd-10th Standards across India and outside India. They provide the question bank of various subjects which are set by them based on the class level, board (like state or CBSE or ICSE etc.) and the methodology adopted by the school for teaching, to the Schools and it is called "ASSET" which stands for "Assessment of Scholastic Skills through Educational Testing". The applicant submitted that it is a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itution are exempt. Service specified under Entry No. 66(b)(iv) reads as under, "Service Provided (b) to an educational institution, by way of,- (iv) services relating to admission to, or conduct of examination by, such institution, up to higher secondary. As per the above mentioned entry, services are exempt only when the same are provided by/ to an institution which qualifies the definition of an 'educational institution". Further, it is submitted that the service provided by the applicant is in relation to conduct of online examination by schools and it does not have any other use than in conducting a specific examination. The applicant is, therefore not liable to pay tax on the service provided to the Educational institution. 2.4 The applicant submitted that every activity of educational institution by which it examines progress or test qualification or knowledge of student would fall under meaning of examination by the educational institution. In the instant case, applicant is providing contents to the school for conducting examinations and after examination, provides reports on performance of students. These reports are used by the schools for evaluation of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to conduct of examination of students by such educational Institutes. The GAAR has also placed reliance on the ruling of M/s. Edutest Solutions Private Limited, Gujarat AAR (2018 (10) TMI 201) and M/S. The Bangalore Printing And Publishing Co. Limited, Karnataka AAR (2019 (11) TMI 157), wherein it was held that supply of printing question paper is eligible for exemption under Sr. No. 66(b)(iv) of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended. In the instant case, the applicant has been preparing the questions too apart from printing them, accordingly similar kind of service was provided by the service provider to Educational Institutions. In view of the foregoing, the GAAR has ruled as follows :- Question :...... Ans: Yes, exemption is available in view of the above discussion in respect of ASSET services provided to educational institution. 4. Aggrieved by the aforesaid ruling, the Assistant Commissioner, Central Goods and Services Tax, Division - VII, Ahmedabad - South Commissionerate (Jurisdictional Officer) (herein after referred to as the "appellant" or the "Department") has filed the present appeal. 4.1 It has been submitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration of someone or something and judgment about them, a series of actions of event that are planned to be done. ASSET assessment programme fits into the above definition i.e. ASSET evaluate the students' performance based on the assessment test and accordingly prescribe students, teachers and management, personalized feedback, personalized report, benchmarking, practice question for learning purpose and other number of series of events and actions as mentioned below: (i) It provides insight on the performance of the entire school on all subjects at a national, state and city level. (ii) It provides in depth of section's performance, skill analysis highlights areas of improvement for section. (iii) Assess and inform students understanding of concepts and about critical learning gaps. (iv) What should teachers do to improve classroom instruction. (v) Provides insight more in Mybooks i.e. Student Mybook, Teacher Mybook and Management Mybook. (vi) Student Mybook consists of following : Response Sheet, Skill Profile and Remediation target, Strength and Weakness with remediation planning, Practice question for learning check. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vides feedback on real learning to students. It pinpoints their academic strengths and weaknesses thereby giving them an accurate picture of where they stand with respect to their peers. It helps improve the overall perspective of a school by pointing out skills that need improvement. The reports provide better directions for programmes like teacher training and capacity building. It provides key insights to teachers about where their students stand with regards to the different skills, when compared with other sections and other schools. It also provides practice questions that can be used to reinforce concepts in weak skills. Students get a personalised report which highlights their strong and weak skills. Practice questions for the weak skills are also provided. 4.5 From the above referred information, ASSET is a benchmarking test for school and not examination conducted by the school in respect of their core activity i.e. Education upto the level of higher Secondary. Further, GAAR has observed that "ASSET exam is conducted without any pre / post teaching business with the school" and "under ASSET, they do not provide any pre or post exam teaching t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been submitted that the Hon'ble Supreme Court Judgement in the case of Doypack Systems (P) Ltd Vs UOI [1988 (36) ELT 201 SC], relied upon by the Members of the GAAR, is not applicable in the instant case, as it is applicable only when the service provider has provided the service to the educational institute in relation to conduct of examination but in the case at hand the applicant is involved in the business of building products that focus on diagnostic assessment and personalized learning. 4.8 It has been submitted that in case of advance ruling of M/s Edutest Solution Private Limited, by Gujarat AAR (2018 (10) TMI 201) and M/s The Banglore Printing and Publishing Co. Limited, by Karnataka AAR (2019 (11) TMI 157), it was held that supply of printing question papers is eligible for exemption under Sr. No. 66(b)(iv) of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended. In these cases, the supplier received orders for printing of question papers, with the content of questions provided to them. However, in the instant case, the applicant has been preparing the questions too apart from printing them. Further, the applicant's activity is not limited to that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... No. 12/2017-Central Tax (rate) dated 28.06.2017 and entry No. 69(b)(iv) of Not. No. 9/2017-Integrated Tax (Rate) dated 28.06.2017 as well as equivalent SGST Notification and shall attract GST at the rate of 18% (9% CGST and 9% SGST) in terms of Sr. No. - 30 of the Notification No. - 11/2017 - C.T. (Rate) dated 28.06.2020, as amended, as well as equivalent IGST and SGST notification. 5. The applicant has also made written submissions vide letter dated 05.11.2020 against the Appeal filed by the Department. 5.1 Apart from reiterating the submissions made in the Application for Advance Ruling filed before the GAAR, the applicant has submitted that the dictionary meaning are guided by the general linguistic principles however when the terms are used in relation to a particular subject, the essence of the meaning is to be construed in view of the subject in relation to which the meaning are narrated. Therefore, the term 'examination' and 'assessment' when viewed from the academic perspective indicate that the same are synonyms and both the terms indicate that the subject is put to attest or like tool which would help in ascertaining the knowledge level of the subject in a particu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....department's contention that ASSET being an Assessment Programme, is not just the formal test but much beyond that is based on two points : a. ASSET is an assessment programme which evaluates the students' performance based on the assessment test : This statement merely points out to the fact that the performance of a student is evaluated by use of ASSET. This fact establishes the fact that ASSET is a test that measures the academic acumen of a student which is nothing but an examination looking from the perspective of academics. b. Prescribing personalized feedback and practice question for learning purpose : Providing practice question is merely aimed at getting the students acquainted with the methodology of the test. A simple act of providing practice question does not take away the point that ASSET is an examination. 5.5 The applicant has submitted that providing full time support for school and teachers with regard to ASSET tool does not change the fact that they are rendering service in relation to conducting an examination. Further, it is submitted that one day workshop is conducted for the sole purpose of explaining to the teachers as to how to analyse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xplained in detail before the Advance Ruling Authority. 5.10 The applicant has submitted that the entire exercise undertaken by the department is merely on the basis of the website content which is not legally tenable as such the website is marketing tool and the contents displayed thereon is more with a view to get maximum publicity mileage. The website contents portray the array of products and services offered by the applicant of which only one particular activity is under dispute. The web-contents are designed on the marketing front whereas the actual activity needs to be assessed in terms of the agreement entered into with the schools. 5.11 The applicant has submitted that the department had not taken into consideration the point number 8 of the terms and condition of the agreement which states that, ASSET shall form mandatory part of their examination and evaluation of the students. Schools have themselves agreed that ASSET shall form part of their examination system. The fact that they provide question paper in physical as well as online format to the school and also the other fact that if any school took ASSET, it is mandatory to take for all the students in a class a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made at the time of personal hearing, written submissions filed by the CGST department, submissions filed by the applicant, Advance Ruling given by the GAAR and other material available on record. 7. The issue before us is to decide whether the ASSET supplied by the applicant to the schools is eligible for exemption from Goods and Services Tax in terms of Entry No. 66 (b) (iv) of Notification No. 12/2017-Central Tax (Rate) dated 28-6-2018, as amended vide Notification No. 2/2018-Central Tax (Rate) dated 25-1-2018, or otherwise. 7.1 It would, therefore be appropriate to refer to the relevant entry at Sl. No. 66 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and other relevant terms defined / explained in the said Notification, which reads as follows :- Sl.No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Condition (1) (2) (3) (4) (5) 6 Heading 9992 or Heading 9963 Services provided - (a) by an educational institution to its students, faculty and staff; (aa) by an educational institution by way of conduct of entrance examination against consideration in the f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 'services provided to an educational institution, by way of services relating to conduct of examination by such institution'. 8. We are, therefore, of the view that this matter can be decided by determining whether it can be said that ASSET is conducted by the schools or otherwise, without going into the question whether the ASSET is 'examination' or 'assessment' and without deliberating upon the difference between the terms 'examination' and 'assessment'. 8.1 As submitted by the applicant, 'ASSET' is an examination tool for educational assessment of students in class 3 to 10, across India and outside India; that the applicant provides the Question Bank of various subjects, which are set by them based on the class level, Board type (State Board, CBSE, ICSE etc.) and the methodology adopted by the school. Thus, the Question Papers of various subjects are set by the applicant and not by the schools. Further, these Question Papers of various subjects are printed / got printed by the applicant and not by the schools. 8.2 On going through the School Summary Form (EB / ARO) 2019 submitted by the applicant, it appears that the ASSET test is taken twice a year, i.e. 'Summer Round....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ides practice tests to the students, concentrating on their weak points. The applicant also provides answers to the exam, with elaborate explanation, to enhance the self learning process and to equip students with skills to avoid misconceptions in future. In this process also, the schools have no role. 8.6 It is apparent that in case of ASSET, the Question papers are set and printed by the applicant, timings of ASSET are fixed by the applicant, answers given by the students are assessed by the applicant, based on which result and detailed analysis is given by the applicant. The subjects for which ASSET can be taken are also fixed by the applicant. All these facts lead to the only conclusion that ASSET is conducted by the applicant. Therefore, it cannot be said that ASSET is an examination conducted by the schools i.e. educational institution. 9. We may also look into other aspects of ASSET. 9.1 It appears that ASSET provides an opportunity to students of grades 5 to 8, who perform exceptionally well in the ASSET test, to appear for ASSET Talent Search - a twolevel test designed to identify academically gifted students wherein the top-performing students get an opportunity ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ade submissions on the basis of the website content. It has been contended that the web contents are designed on the marketing front whereas the actual activity needs to be assessed in terms of the agreement entered into with the schools. However, the applicant has specifically not controverted any submission made by the appellant department or it has not been submitted which part of their website content is at variance with the actual activity carried out by them in relation to conduct of ASSET. 11.2 The applicant has submitted that ASSET is used by the schools registered with them to evaluate the performance of students for giving internal marks, which bears 20% weightage in the standard X Board Examination. The moot question is whether the ASSET can be said to be conducted by schools, even if it is used to evaluate the performance of students for giving internal marks by the schools. The answer to this is obviously no. Furthermore, the applicant has not submitted whether the ASSET is conducted as substitute for any regular / periodic examination to be conducted by the schools. There is also no submission by the applicant clarifying whether respective Boards (State Board, CBSE....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplicant with a condition that all students in a class would take ASSET. The condition of the agreement only leads to a conclusion that unless the school agrees to take ASSET for all the students in a class, the applicant would not enter into a contract with that school to conduct ASSET. However, such condition in an agreement cannot change the nature of ASSET and it will not make ASSET an examination conducted by the schools. 11.5 A reference has also been made to a 'Flyer' issued by the Central Board of Excise & Customs (CBEC, now Central Board of Indirect Taxes & Customs - CBIC). In the said 'Flyer', it has been inter-alia mentioned as follows - "Taxing the Education Sector has always been a sensitive issue, as education is seen more as a social activity than a business one. The Government has a constitutional obligation to provide free and compulsory elementary education to every child. Thus, to promote education, it would be beneficial if educational services are exempted from tax. However, commercialisation of education is also a reality. The distinction between core and ancillary education is blurring and education is now an organised industry with huge revenues.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion Papers was being supplied by the Education Boards / Educational Institutes and the scope of work of Edutest Solutions Pvt. Ltd. was limited to composing, typesetting. printing, packing and supplying sealed Question Papers to the Education Board / Educational Institutes. In that case, usage rights of the manuscript material of Question Papers were owned by the Education Boards / Educational Institutes. Similarly, in the case of The Bangalore Printing and Publishing Co. Limited [2019 (29) GSTL 835 (AAR-GST)], the work of the applicant therein was limited to composing and printing of Question Paper book for State Level Higher Secondary Examinations and supply of same to the designated place of the State Government Institutions. The content was to be provided by the respective State Government Institutions by soft copy / manuscript, by e-mail or otherwise. Again, in the case of Datacon Technologies [2020 (41) GSTL 380 (AAR-GST - Kar.)], the applicant therein was only given the job to scan the OMR Flying slip, OMR marks Foil with barcode sticker, scanning of OMR attendance sheet and scanning OMR Absentee sheet along with data extraction and finalization of data in all the four cate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 28.06.2017, as amended and corresponding Entry of Notification No. 12/2017-State Tax (Rate) dated 30.06.2017, as amended and hence not exempted from payment of Goods and Services Tax. ============= Document 1 PERSONALISED STUDENT FEEDBACK Congratulations on taking the ASSET test! ASSET is a diagnostic test that tells you which skills you are strong at and which skills you should work on to develop further. "The analysis given here is for all the subjects for which you have taken the ASSET test. Subject English Maths Science Highest-performing Skills Identifies synonyms, antonyms and other words Deduces word meanings from contextual clues Applications in daily life: word/visual problems Number sense, related concepts and basic number competency Hypothesis formulation or prediction of outcome Recollection or recognition of science facts and concepts Practice questions compiled especially for you! Lowest-performing Skills Knows correct spellings and phonics in words Understands the usage of grammar concepts Arithmetic operations: multiplication Basic shapes and geometry Complex analysis, data interpretation, ....