TaxTMI 
TaxTMI 
2022 (5) TMI 1072
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.... on formation of Gujarat State on 01.05.1960, a department named Education and labour department came into existence and social welfare, labour, prohibition, excise and employment were included in Education Department and later subjects were gradually taken away from the Education and Labour Department on administrative grounds; that since August, 1976, Education Department came into existence as separate secretariat department, which looks after education including primary education, continuous education, literacy education, secondary education, higher education, technical education, pharmacy education. 4. The appellant has stated that the State Examination Board was established by the Gujarat Education Department in November, 1966 to arrange and conduct examinations; that this Board was declared 'autonomous' by a Notification No.1099/1081/N dated 26.10.1999 and 24.05.2000 of the Education Department in 1999 and has submitted a copy of the same; that the State Examination Board is registered under Societies Registration Act 1860. 5. The appellant sought ruling from the Gujarat Authority for Advance Ruling ['GAAR'] with respect to list of 23 exams on the following question- Whe....
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....tion Department, Environment Officer and Scientific Officer for GPCB etc. As these exams, being qualifying exams or exams, which results in the employment of the successful candidates, cannot, by any stretch of imagination be covered under the Entry at Sr. No. 17 (i.e. 'Education, including primary and secondary schools') under the list of functions entrusted to a Panchayat under Article 243G of the Constitution of India. Therefore, these services supplied by the appellant are not eligible for the benefit of exemption available at Sr. No. 5 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. 8. In addition, the GAAR observed that the State Examination Board, although established by the Education Department of the Government of Gujarat, is an autonomous body, established for the sole purpose of conducting various types of examinations and cannot, be considered as a State Education Board as the functions of the State Examination Board are completely different from that of a State Education Board. It was further observed that in order to be eligible to avail the benefit of exemption available under the aforementioned Sr. No. 66 (a) and (aa), the primary criteria of being ....
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....der Heading 9992 (which covers Education Services) and further stated that it appears that the 'State Examination Board' is a Board which is fully controlled by the Government of Gujarat through the Members of the said Board who are all appointed by the Government of Gujarat and are all State Government employees and therefore, the said Board appears to be a Government body wholly owned by the State Government of Gujarat. Thus, appellant submitted that 'State Examination Board' can be considered as "Governmental Authority" in order to avail benefit under Entry No. 5 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. 14. The appellant submitted that the term "in relation to" have been interpreted by the Supreme Court in the case of CCE V/s Rajasthan State Chemical Works 1999(55) ELT 444 (SC) and Union of India V/s Ahmedabad Electricity Co. Ltd. 2003(158) ELT 3(SC), wherein it has been held that such words widen and expand the scope, meaning and content of expressions. Further, appellant submitted that Hon'ble Supreme Court in case of M/s. Doypack Systems (P) Ltd. Vs UOI 1988 (36) ELT 201 SC held that, "The expression "in relation to" (so also "pertaining to"), is....
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.... students" 19. The appellant referred Circular No. 151/07/2021-GST dated 17th June 2021 providing clarification in respect of taxability of various services supplied by Central and State Board such as National Board of Examination (NBE). As per the said Circular, NBE is construed as "Educational Institution" in so far as it provides services by way of conduct of examinations, including any entrance examination, to the students. While referring this Circular, the appellant submitted that M/s State Examinations Board should also be given the same recognition of "Educational Institution" as is given to NBE. 20. In addition, the appellant also referred to Judgement of Hon. Gujarat High Court in case of M/s Educational Initiatives Pvt Ltd v. Union of India (Special Civil Application No. 16476 of 2021) dated 18th February, 2022 for clarifying "examination" as an essential component of education. The relevant para of the Judgement is reproduced below: "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 ma....
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....ions into six different categories and submitted all relevant documents clarifying how various examinations are eligible to claim the exemption benefits under the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. Detailed submissions on taxability for conducting various exams are made as under: 21.1 Category - 1: 21.1.1 This category includes the following two exams: (i) Teacher Eligibility Test - 1 (TET-1) (ii) Teacher Eligibility Test - 2 (TET-2) Hereinafter, these exams are referred to as "TET". This examination is required for a person to be eligible for appointment as a teacher in primary school (i.e. in class I to VIII in a school). 21.1.2 Eligibility of a person to appear in TET: It is submitted that examination of TET -1 can be appeared by candidate who has completed 12thHigher Secondary (HSC) and Diploma in Elementary Education (D.El.Ed.). For examination of TET-2, a person should have completed Graduation and Bachelor of Education (B.Ed) or Diploma in Elementary Education (D.El.Ed.). 21.1.3 Statutory provision of TET for appointment as a teacher: TET exams are undertaken as per the provisions contained in the Right of Children to Free and Comp....
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....ble for appointment as a teacher in classes I to VIII in any of the schools referred to in clause (n) of section 2 of RTE Act, he/she should pass the Teacher Eligibility Test (TET) as conducted by the appropriate Government in accordance with the Guidelines framed by NCTE. 21.1.6 Framing Syllabus and authorising State Examination Board for conducting TET: In exercise of the powers conferred by sub-section (1) of Section 23 of the RTE Act and in pursuance of the Guidelines by NCTE, the Education Department of Government of Gujarat has passed a resolution No. PRE-1111-711-K dated 27th April 2011 and framed the syllabus for TET and decided that TET shall be conducted by the State Examination Board, Gandhinagar. 21.1.7 On perusal of aforesaid details, the appellant submitted that the TET is a qualification recognised by the RTE Act. The State Examination Boardprovides services by way of conducting TET and issues Mark-sheet to the successful candidates. Thus, it is submitted that the State Examination Board, being an educational institution, is eligible to avail benefit of exemption as per entry 66 (aa) Notification No. 12/2017 - Central Tax Rate dated 28th June 2017 21.2 Catego....
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....gible for appointment as Teacher or Head Master, a candidate shall possess- (a) requisite educational qualifications and age in accordance with the provisions of the Gujarat Secondary Education regulations, 1974; and (b) ............." 21.2.4 Qualifications of Teachers and Head Masters: The Education Department, Government of Gujarat has passed the Secondary Education Regulations, 1974 and laid down the qualifications of head masters and teachers. Relevant regulation No. 20 is as under: 20. Qualifications of Head Masters, Teachers and members of nonteaching staff in a registered school: (1) No person shall be appointed as a Head Master or a second Head unless he is trained graduate (B.T or B.Ed) or its equivalent as declared by the State Government, with post training teacher/ inspecting experience of not less than five years of which at least three years teaching experience must be in a secondary school. (2)............. (3) No person shall be appointed as a teacher unless he- (a) has attained the age of eighteen years, and (b) possesses - (i) a degree in any faculty of any university in India established by law, and (ii) a degree of Bachelor in Teaching or....
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....o. BMS/1117/2425/G dated 9th August, 2017 and framed the syllabus for HMAT and decided that HMAT shall be conducted by the State Examination Board, Gandhinagar. 21.2.7 On the basis of aforesaid details, the appellant submitted that the TAT / HMAT is a qualification recognised under the GSHSE Act. The State Examination Board provides services by way of conducting TAT / HMAT and also issues Marksheet to the successful candidates. Thus, it is submitted that the State Examination Board, being an educational institution, is eligible to avail benefit of exemption as per entry 66 (aa) Notification No. 12/2017 - Central Tax Rate dated 28th June 2017. 21.3 Category - 3: 21.3.1 This category deals with exam relating to Head Teacher Aptitude Test (HTAT). This examination is required for a person to be eligible for appointment as Head-teacher in in Primary and Upper Primary school (class I to VIII in a school). 21.3.2 Eligibility of a person to appear in HTAT: It is submitted that examination of HTAT can be appeared by candidate who has completed Graduation and Bachelor of Education (B.Ed) or Diploma in Elementary Education (D.El.Ed.)with 5 years' experience of teaching can appear in....
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....amination Board, Gandhinagar. 21.3.6 On the basis of aforesaid details, the appellant submitted that post of Headteacher is created based on norms and standards as decided under the RTE Act, the qualification of HTAT is recognized under the GPE Act. The State Examination Board provides services by way of conducting HTAT and also issues Mark-sheet to the successful candidates. Thus, it is submitted that the State Examination Board, being an educational institution, is eligible to avail benefit of exemption as per entry 66 (aa) Notification No. 12/2017 - Central Tax Rate dated 28th June 2017. 21.4 Category - 4: 21.4.1 This category includes the following six exams: (i) Diploma in Pre School Education (DPSE) - 2 years course (Old name Pre-primary) (ii) Diploma in Elementary Education (D.El.Ed.) - 2 years course (Old name PTC) (iii) Art Teacher Diploma (ATD) (or Diploma in Arts Education) - 2 years course (iv) Applied Arts - 5 years course (v) Drawing & Painting 5 years course (vi) Sculpture - 5 years course These exams are required for appointment as teacher / lecturer in school or college like DPSE - for teacher in BAL MANDIR (Pre Primary School), D.El.Ed. - teach....
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.... (l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes; ....................." Section 12A of the NCTE Act gives power to NCTE to determine minimum standards of education of school teacher. This provision is reproduced as under: "12A. Power of Council to determine minimum standards of education of school teachers.-For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any preprimary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority: Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the ....
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....lpture, Applied Arts - As per Para 4.1 (a) in Appendix - 11] Appendix - 11 12 Diploma in arts education (performing arts) programme leading to Diploma in Arts Education (Performing Arts) Appendix - 12 Various Appendix as per Resolution 9 of the said Regulations provides the details of Norms and Standards for various teacher education programmes such as Duration and Working Days; Intake, Eligibility, Admission Procedure and Fees; Curriculum (i.e. syllabus), Programme Implementation and Assessment; etc. 21.4.4 Authorising State Examination Board for conducting exams: Further, the Education Department, Government of Gujarat has passed the Resolution No. MISE/1067/L dated 4th November 1966 and constituted the State Examination Board for conduct of the various examinations. The said list includes examinations relating to aforesaid education programme. 21.4.5 On the basis of aforesaid details, the appellant submitted that qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college is created based on norms and standards as decided under the NCTE Act. The State Examin....
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....trol Board (GPCB)). 21.6.3 It is submitted that various Departmental exams are conducted by the State Examination Boardbased on basis of the Resolutions passed by the respective Department of the State Government. As per these Resolutions, no fees have been charged from any employees for three trials. Subsequently, fee amounting Rs. 200/- is charged from the candidates. 21.6.4 The appellant has referred section 7 of the CGST Act, which is reproduced below: "Section 7. Scope of supply.- (1) For the purposes of this Act, the expression - "supply" includes- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; ...................; 21.6.5 It is submitted that the appellant does not charge any fee from the candidates and therefore there is not consideration in rendering services either to the candidates or to the Government. Therefore, such activities are outside the scope of section 7 of CGST Act and no tax is leviable on such activity. 22. In the instant case, the appellant submitted that the prim....
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....r: Sr.No. Exams Eligibility 1. Teacher Eligibility Test-1 (TET-1) 12th Higher Secondary (HSC) + D.El.Ed. 2. Teacher Eligibility Test-1 (TET-2) Graduate + B.Ed / D.El.Ed. 3. Teacher Aptitude Test (TAT (Sec.)) Graduate + B.Ed. 4. Teacher Aptitude Test (TAT (HS) Graduate + Post Graduate + B.Ed. 5. Head Master Aptitude Test (HMAT) Teacher of Government/Granted School with more than 7 years. 6. Head Teacher Aptitude Test (HTAT) Graduate + B.Ed/ D.El.Ed + 5 years experience of teaching. 7. Diploma in Pre School Education (DPSE) - 2 years course (Old name Pre-primary) Std.12th passed 8. Diploma in Elementary Education (D.El.Ed.) - 2 years course (Old name PTC) Std.12th passed 9. Art Teacher Diploma (ATD) - 2 years course. Std.12th passed who have Drawing subject in SSC and HSC. 10. Applied Arts 5 years course Std.12th passed (who have Drawing subject in SSC and HSC) or ATD. 11. Drawing and Painting 5 years course Std.12th passed (who have Drawing subject in SSC and HSC) or ATD. 12. Sculpture 5 years course Std.12th passed (who have Drawing subject in SSC and HSC) or ATD. 13. Diploma in Home Science Std. 12th passed. 14. GCC Type ....
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....definition of "educational institution". In this context, we find that the appellant has referred to the amendment made in respect of Notification No.12/2017-Central Tax(Rate) dated 28.06.2017 vide Notification No.14/2018-Central Tax(Rate) dated 26.07.2018, which reads as under: "(ii) in paragraph 3, in the Explanation, after clause (iii), the following clause shall be inserted, namely: - "(iv) For removal of doubts, it is clarified that the Central and State Educational Boards shall be treated as Educational Institution for the limited purpose of providing services by way of conduct of examination to the students.". 31. In addition, the appellant also referred Circular No. 151/07/2021-GST dated 17th June 2021 and submitted that State Examinations Board should be given the same recognition of "Educational Institution" as is given to NBE. In the said circular, Central Board such as National Board of Examination (NBE) is construed as "Educational Institution" in so far as it provides services by way of conduct of examinations, including any entrance examination, to the students. 32. As already stated, these exams do not provide employment to the successful candidates, but make ....
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....h August, 2017) passed by the Education Department, Government of Gujarat Eligibility test to appoint for the job of Head Master in Grant-inAid School. 6. HTAT Resolution No. PRE/1111/2 834/K dated 18th January 2012 passed by the Education Department, Government of Gujarat As per the provisions contained in the Gujarat Primary Education Act, 1947 Resolution No. PRE/1111/2 834/K dated 18th January 2012 passed by the Education Department, Government of Gujarat Eligibility test to appoint for the Job of Teacher in Primary and Upper Primary school. 7. DPSE As per regulation - 9 of the National Council for Teacher Education (Recognitio n Norms and Procedure) Regulations, 2014 As per the provisions of the National Council for Teacher Education Act, 1993 Resolution No. MISE/1067/L dated 4th November 1966 (as amended from time to time) passed by the Education Department, Government of Gujarat Course for the teacher to appoint in BAL MANDIR (Pre Primary School). 8. D.El.Ed. Course for the teacher to appoint in Primary school (Std.1 to Std.8) 9. ATD Course for the drawing teacher to appoint in Primary and Secondary Schools. 10. Applied Arts Course for th....
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.... 28.06.2017. Sl. No. 5 of the said notification reads, as under: Sl.No. Chapter Description of Service Rate Condition 5. Chapter 99 Services by a Governmental Authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution. NIL NIL 39. In the instant case, the AAR stated that the activity of conducting examinations by the appellant squarely falls under Heading 9992 (which covers Education Services) and further held that 'State Examination Board' can be considered as "Governmental Authority". 40. Now, we consider whether the activities carried out by the appellant i.e. the conducting of examinations are in relation to any functions entrusted to a panchayat under Article 243G of the Constitution. The same are listed hereunder. The appellant has referred to an entry at Sl. No. 17 in the Eleventh Schedule, wherein functions are entrusted to a panchayat under Article 243G of the Constitution, which reads as under: ELEVENTH SCHEDULE (Article 243G) ................... 17. Education, including primary and secondary schools. ..................... 41. Appellant has referred definition of 'Education' as per ....