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2022 (4) TMI 49
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....ion is exempted from payment of GST under Entry No.66(b)(iv) of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 as well as equivalent SGST Notification and Entry No.69(b)(iv) of Notification No.9/2017-Integrated Tax (Rate) dated 28.06.2017 and not liable to pay GST is just and proper; (c) That this Hon'ble Court may be pleased to issue a writ of prohibition, or a writ in the nature of prohibition, or any other appropriate writ, order or direction, directing the respondents, their officers, employees not to initiate any actions for recovery of GST or any other liability on account of services provided by the petitioner to school/educational organization in relation to ASSET examinations for nonpayment of GST; (d) Ad-interim relief in terms of prayer C above; (e) costs of the petition be provided for; (f) for such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case may require." 2. The facts giving rise to this writ-application may be summarised as under : 2(1) The writ-applicant is a private limited company registered under the provisions of the Companies ....
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....o, on the recommendations of the Council, hereby exempts the intra-State supply of services of description as specified in column (3) of the Table below from so much of the central tax leviable thereon under sub-section (1) of section 9 of the said Act, as is in excess of the said tax calculated at the rate as specified in the corresponding entry in column (4) of the said Table, unless specified otherwise, subject to the relevant conditions as specified in the corresponding entry in column (5) of the said Table, namely:- Table Sl. No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent.) Condition (1) (2) (3) (4) (5) 66 Heading 9992 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 form of entrance fee;] (b) to an educational institution, by way of,- (i) transportation of students, faculty and staff; (ii) catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; (iii) security....
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....ount towards Administration cost. (The applicant has not submitted any details/documents in respect of other discount in respect of which it is mentioned to refer to the Offer and Discounts section). It is therefore evident that the schools are not conducting the ASSET, rather the schools are facilitating the applicant to conduct ASSET for which the schools get some amount towards administration cost. 11.1 It is the contention of the applicant that the department has made 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 Ex....
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....t at liberty to take it for a few students only. In our considered view, even this aspect would not change the basic characteristics of ASSET that it is conducted by the applicant and not by the schools. The schools may find ASSET to be a good tool to evaluate students' level of understanding of different subjects and may also find the detailed reports given by the applicant to be useful for devising future course of action by the schools. Therefore, schools may enter into agreement with the applicant 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 interalia mentioned as follows - "Taxing the Education Sector....
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....as provided under Entry at Sl. No.66(b)(iv) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017, as amended and corresponding Notification No.12/2017-State Tax (Rate) dated 30.06.2017, as amended, is not available to ASSET. 14. In view of the foregoing discussion, we allow the appeal filed by the department, modify the Advance Ruling No. GUJ/GAAR/R/27/2020 dated 02.07.2020 of the Gujarat Authority for Advance Ruling and hold that ASSET (Assessment of Scholastic Skills through Educational Testing - with its variants) conducted by M/s. Educational Initiative Private Limited is not covered within Entry at Sr. No. 66(b)(iv) of Notification No. 12/2017-Central Tax (Rate) dated 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." 3. Being dissatisfied with the aforesaid order passed by the Gujarat Appellate Authority for Advance Ruling, the writapplicant is here before this Court with the present writapplication. SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT : 4. Mr.J.K.Mittal, the learned senior counsel assisted by Mr.Hardik Modh,....
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....input tax credit too. The respondent No.1, through its Board (CBIC), in the E-Flyer on the education services, has clarified that the services which are obtained by schools have been exempted from the GST under the aforesaid Notification No.12/2017-Central Tax (Rate) by stating that: ".....GST law recognizes this and provides exemption to educational institutions, providing eduction upto higher secondary school or equivalent, from the levy of GST. Auxiliary services received by such educational institutions for the purpose of education upto Higher Secondary levy is also exempt from GST." 10. In the CBIC Circular No.151/07/2021-GST dated 17.06.2021, in para 4, it has also clarified that : "GST is also exempt on input services relating to admission to, or conduct of examination, such as online testing service, result publication, printing of notification for examination, admit card and questions papers etc, when provided to such Boards." [under S. No.66(b)(iv) of notifi No. 12/2017-CT(R)]. 11. In such circumstances referred to above, the learned senior counsel prays that there being merit in his writ-application, the same be allowed and the impugned order pass....
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....iculum for obtaining a qualification recognised by any law for the time being in force; (iii) education as a part of an approved vocational education course;" 17. The term 'education' has not been defined. The Supreme Court, in the case of Sole Trustee, Loka Shikshana Trust vs. CIT, (1976) 1 SCC 254 : AIR 1976 SC 10, has explained the term 'education' as a process of training and developing knowledge, skill, mind and character of students by formal schooling. 18. We are of the view that the word 'education' cannot be given a natural meaning by restricting it to the actual imparting of education to the students but should be given a wider meaning which would take within its sweep all the matters relating to imparting and controlling education. Examination is an essential component of education as it is one of the major means to assess and evaluate the skills of a candidate and the knowledge, be it a school test, university examination, professional entrance examination or any other examination. As held by the Supreme Court, the examination is considered as a common tool around which the entire education system revolves. In State of Tamil Nadu vs. K.Shyam Sunder (2011)....
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....and Hindi; - Asset is skill-based exam; - Provides details customised skill-wise Examination Reports highlighting strengths and weaknesses; - Benchmarks the student's performance against peers all over the country; - The ASSET exam is conducted at school and the school based on their internal policy makes ASSET a part of their examination evaluation system; - Schools choose to take the ASSET exam in summer (July-August) or winter (December). BENEFIT OF ASSET/ASSET Dynamic : - Provide feedback/Detailed examination Reports on real learning; - Allows students to know they stand and pinpoints areas of strengths and weaknesses; - Allows schools to benchmark themselves against the best and identify areas requiring improvement; - Provides teachers with insights into where exactly their students stand compared to the national average or another section or school ASSESSMENT OF SCHOLASTIC SKILLS THROUGH EDUCATIONAL TESTING (ASSET) : - The ASSET is an examination tool for educational assessment of students of class 3-10 in schools across India and outside India. - Under the ASS....
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....ined vide clause (y) of Paragraph 2 of the said Notification. In this regard, we refer to a sample copy of agreement held between applicant i.e. Educational Initiative and B R Birla Public School, Jhawar Road, Jodhpur submitted by the applicant. Upon perusal of the said agreement and web site of said School http://brbirlaschool.org/, it is observed that the said school is providing education up to Higher Secondary and affiliated to Central Board of Secondary Education (CBSE). Further, the terms and condition of the said agreement reveal that the applicant has made an agreement with School for supply of ASSET multiple question paper. Accordingly, we hold that the first condition has been fulfilled in respect of claim of subject exemption. 21. It is now to be seen whether the conditions mandated by entry 66 (b) (iv) of notification 12/2017-Central Tax as reproduced are fulfilled or not as far as the services relating to conduct of examination by, such institution; up to higher secondary. We find from the submissions of the applicant that they are supplying ASSET multiple questions to the School for taking the examination on students on yearly basis. Sample agreement submitte....
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....erning with" and "pertaining to". Exemption entry uses this term 'relation to' and therefore we are of the opinion that any service provided which helps the education institution in its act of examination will be covered and shall be eligible for exemption from levy of GST. 21.3 Further, GST flyer 40 dated 1.01.2018 was issued for explaining taxability of education sector where the issue of taxability of auxiliary services procured by educational institutions was clarified as under: "Education is fundamental to the nation building process. Right to Education is now a fundamental right of every child in India. GST Law recognises this and provides exemption to educational institutions, providing education up to higher secondary school or equivalent, from the levy of GST. Auxiliary services received by such educational institutions for the purpose of education up to Higher Secondary level is also exempt from GST. Other services related to education, not covered by the exemption, would be taxed at a standard rate of 18% with full admissibility of ITC for such taxable services in cases where the output service is not exempt. In a nutshell, every attempt is made to ensu....