TaxTMI 
TaxTMI 
2022 (4) TMI 1089
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.... C, The Millenia, Murphy Road, Ulsoor, Bangalore, 560008 (herein after referred to as Appellant) against the Advance Ruling order No. KAR ADRG 52/2021 dated 29lh October 2021. Brief Facts of the case: 3. The Appellant is engaged in providing human resource consulting services, employee assistance services to its corporate customers across India or outside India. The Appellant is a part of a multi-national group and is a subsidiary of Workplace Options LLC. Workplace Options LLC entered into a global arrangement with Beacon Health Options Inc.-US (previously known as Value Options Inc. - US), which is a company established in USA and does not have any office or fixed establishment in India, in November 2009 for the purpose of mutual referral of clients and work agreements to Workplace Option group companies across the globe. Beacon US, as part of the global arrangement, has entered into arrangement, for the Indian market involving Workplace Option India Pvt. Ltd. (the Appellant) and referred a customer M/s FIS Global Solutions India Pvt. Ltd., ('FIS India') to the Appellant for performing employee assistant services. For referring clients to the Appellant, Beacon US ch....
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....al interpretation of Section 97(2) and dismissing applications on the ground that the same involves 'place of supply' which is not maintainable before the AAR. The relevant extract of the decision is extracted below:- 23. In the instant case, it is true that the issue relating to determination of place of supply as aforestated is not expressly enumerated in any of the clauses as per clauses (a) to (g) of Section 97(2) of the CGST Act, but there cannot be any two arguments that the said issue relating to determination of place of supply, which is one of the crucial issues to be determined as to whether or not it fulfils the definition of place of service, would also come within the ambit of the larger of issue of "determination of liability to pay tax on any goods or services or both" as envisaged in clause (e) of Section 97(2) of the CGST Act. The Advance Ruling Authority has proceeded on a tangent and has missed the said crucial aspect of the matter and has taken a very hyper technical view that it does not have jurisdiction for the simple reason that the said issue is not expressly enumerated in Section 97(2) of the Act. This Court has no hesitation to hold that ....
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....n light of the decision of Kerala High Court and AARs across the nation accepting the same and passing advance rulings on the subject of place of supply. Therefore, they prayed that the impugned order of the lower Authority be set aside as being contrary to law and binding judicial precedents and pass necessary /consequential directions as deemed fit in the interest of equity and justice. PERSONAL HEARING 7. The appellant was granted a virtual hearing on 27th January 2022. The hearing was conducted on the Webex platform following the guidelines issued by the CBIC vide Instruction F.No 390/Misc/3/2019-JC dated 21st August 2020. The Appellant was represented by Shri. Harish Bindhumadhavan and Shri. Rishabh Singhvi, Advocates and authorised representatives. 7.1. The Advocate Shri. Harish Bindhumadhavan explained the facts of the case and the circumstances leading to the present appeal. He submitted that the Appellant is an entity which is a subsidiary of an overseas Company - Workplace Options LLC. The latter has entered into an agreement with M/s Beacon Health Options Inc - US for the purpose of referring clients to Workplace Options companies worldwide, which includes the A....
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.... come within the ambit of the larger issue of "determination of liability to pay tax on any goods or services or both" as envisaged in clause (e) of Sec. 97(2) of the CGST Act. 7.4. On a specific query from the Member whether the above decision of the Kerala High Court has been accepted by the Department, Shri. Rishabh Singhvi, Advocate replied that it is not known whether the Department has accepted the said order. However, the said decision of the Kerala High Court has since been taken cognizance of by other Advance Ruling authorities and Appellate Authority for Advance Ruling in other parts of the country and they have proceeded to examine issues relating to place of supply. He submitted a list of such rulings in the compilation, where the authorities have determined place of supply, based on the decision of the Kerala High Court. 7.5. In view of the above, the Advocates submitted that the ruling of non-maintainability given by the lower Authority is incorrect and deserves to be set aside. They submitted that they will not be arguing on merits since the lower authority has not examined and passed a ruling on merits of the case; that their only plea is that the application ....
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.... liability to pay tax or otherwise is dependent on the place of supply and in such cases, the determination of tax liability inevitably involves a determination of place of supply. Therefore, we are of the opinion that clause (e) of Section 97(2) covers within its scope the determination of place of supply if such determination is linked with the liability to pay tax and in such cases the Authority has the jurisdiction to pass a ruling on the issue of place of supply. 10. Having thus said, we now examine whether the in the instant case the Authority was correct in not determining the place of supply. As already stated, in the instant case, the issue is whether the services procured by the applicant from Beacon, US qualifies to be an import of service. Import of service has been defined in Section 2 (11) of the IGST Act as a supply of service where:- - The supplier of service is located outside India - The recipient of service is located in India; and The place of supply of service is in India Thus, one of the important requirements for supply of any service to be treated as an import of service, is that the place of supply must be in India. The liability to ....
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....es "applicant" as follows:- "applicant " means any person registered or desirous of obtaining registration under this Act; 12. A reading of the above provisions of law gives the clear understanding that any person who is registered under GST or desirous of obtaining a registration under GST may apply for an advance ruling and that the question on which an advance ruling is sought for may be with respect to any of the issues referred to in Section 97(2) which are in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. In other words, it is a supplier of goods or services or both who can seek an advance ruling on any of the issues specified in clauses (a) to (g) of Section 97(2) above. In the case before us, we find that the Appellant who is the applicant of the advance ruling, although registered under GST, is not the supplier of the transaction in question but is the recipient of the supply of service. The Appellant has sought for a ruling as a recipient of service. The advance ruling mechanism under GST does not envisage giving a ruling to a recipient of supply of goods or services or both for the simple re....
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.... sought for an advance ruling on the following aspects :- "Whether supply of services by India Branch of Sutherland Mortgage Services Inc. USA to the customers located outside India shall be liable to GST in the light of the intra-company agreement entered into by the said branch with the principal company incorporated in USA ? " It is in this background that the Hon'ble High Court has observed as follows:- A reading of clauses (a) to (g) of sub-section (2) of Section 97 of the CGST Act would make it clear that 7 items are enumerated as per clauses (a) to (g) of sub-section (2) of Section 97 and all those clauses other than clause (e) thereof are in specific terms. Whereas clause (e) of sub-section (2) of Section 97 of the CGST Act clearly mandates that the larger issue of "determination of liability to pay tax on any goods or services or both" would also come within the ambit of the questions to be raised and decided by the Advance Ruling Authority on which advance ruling could be sought and rendered under the said provisions. Whereas Clauses (a), (b), (c), (d), (f) & (g), i.e. the clauses other than clause (e), are in specific "pigeon holes " and the provision ....