2023 (9) TMI 630

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....rvice Tax (IGST) amounting to Rs.1,83,34,289/- was rejected. 2. The petitioner is a company incorporated under the Companies Act, 2013. It has its registered office in Hyderabad, Telangana and branch office in New Delhi. The petitioner is a subsidiary of Xilinx Inc., USA, a company registered in the United States of America. The petitioner is an Export Oriented Unit (hereafter 'EOU') registered with the Software Technology Parks of India (hereafter 'STPI') and is primarily engaged in exporting information technology software services to entities located overseas. 3. The petitioner entered into an Intercompany Service Agreement (hereafter 'the Agreement') dated 10.06.2016 with its holding company (Xilinx USA) for export of information ....

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.... its holding company did not constitute as export of services within the meaning of Section 2(6) of the IGST Act. 7. The petitioner responded to the said show cause notice clearly explaining that it was an independent company incorporated in India and its supplies to its holding companies were required to be considered as export of services. The petitioner also referred to Circular dated 20.09.2021 (Circular No. 161/17/2021-GST) issued by Central Board of Indirect Taxes & Customs (hereafter 'CBIC'). The said circular expressly clarifies that supply of services by a subsidiary/sister concern/group concern of a foreign company, which is incorporated in India under the Companies Act, 2013 by the establishments of the said foreign company lo....

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....d thus are separate legal entities. Accordingly, these two separate persons would not be considered as "merely establishments of a distinct person in accordance with Explanation I in section 8". 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 e....