2022 (1) TMI 952

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.... Nos. 2 to 4. 2. This writ petition has been filed under Article 226 of the Constitution of India for quashing of the order dated 30.07.2021 passed by respondent No.2 under the Central Goods and Services Tax Act, 2017 (briefly, 'the CGST Act' hereinafter) as being illegal and arbitrary. Petitioner further seeks a direction to the respondents to issue refund of excess tax collected from the petitioner to the extent of Rs. 7,51,487.00 for the period from September, 2019 to August, 2020. 3. The controversy in question was summed up in our order dated 08.11.2021 when we had issued notice. Relevant portion of the order dated 08.11.2021 reads as under: Petitioner's claim for refund of Input Tax Credit was rejected by 3rd respondent....

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....will be considered as a separate "person" under the provisions of CGST Act and accordingly, would be considered as a separate legal entity than the foreign company. 5.2 Therefore, supply of services by a subsidiary/sister concern/group concern, etc. of a foreign company, which is incorporated in India under the Companies Act, 2013 (and thus qualifies as a 'company' in India as per Companies Act), to the establishments of the said foreign company located outside India (incorporated outside India), would not be barred by the condition (v) of the sub-section (6) of the section 2 of the IGST Act, 2017 for being considered as export of services, as it would not be treated as supply between merely establishments of distinct persons under Expla....

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....e-consideration by the Original Authority in the light of the said Circular dated 20.09.2021 especially in terms of Para 4.4 therein, which is reproduced below: From the perusal of the definition of "person" under sub-section (84) of section 2 of the CGST Act, 2017 and the definitions of "company" and "foreign company" under Section 2 of the Companies Act, 2013, it is observed that a company incorporated in India and a foreign company incorporated outside India, are separate "person" under the provisions of CGST Act and accordingly, are separate legal entities. Thus, a subsidiary/sister concern/group concern of any foreign company which is incorporated in India, then the said company incorporated in India will be considered as a se....