TaxTMI 
TaxTMI 
2024 (9) TMI 661
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....referred to as applicant), registered under the AP Goods & Services Tax Act, 2017. 3. Brief Facts of the case: 1. M/s. MCM Pacific PTE LTD, (Hereinafter referred to as "applicant") a company is a Singapore based company, duly registered under the local laws and is in the business of power generation and distribution. The Applicant, currently, does not have any place business in India and resultantly is not registered in India under any Act. The Applicant is in the process of procuring certain goods/ assets as per the agreement from M/s Lanco Kondapallli Power Limited ("Lanco") a company which is currently undergoing liquidation in India. The Applicant is acquiring the said goods/ assets for the further transfer of the same to Myanmar after dismantling, as The Applicant does not have any business operations in India. The Applicant 's intention to procure the said assets during the liquidation process is to transfer the same to Myanmar. 2. The Applicant first procures the assets as per the agreement, then dismantle all the assets and then transfer them to Myanmar. Intention of the Applicant is to take the assets out of India to a place outside India. 3. Intention of t....
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.... section 54 of the Central Goods and Services Tax Actor the rules made thereunder. • Purpose/ intention of the Applicant is to take the goods outside India immediately after procuring the same incompliance to the order of National Company Law Tribunal ("NCLT"). As provided in section 2 (5) of the IGST Act, taking goods outside India falls under the definition of export of goods. • Hence, the current application is being filed to seek Advance Ruling with regard to applicability of provisions of section of 16 of the IGST Act, which allows the transaction of export of goods as "Zero Rated Supply" on which effective tax under GST will be NIL. Further, as per the provisions of section 16 of the IGST Act, Zero Rated supplies of goods can be made without payment of GST subject to fulfilment of certain conditions. In the present case, the Applicant intends to take goods outside India and accordingly is of the view that the supply of such goods may be treated as "Zero Rated Supply" and the same can be made without payment of GST after filing a Letter of Undertaking as provided in the GST law. 6. Representation by the Lanco Kondapalli Power Limited: â€....
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....r title over the Phase III Assets shall be issued, vested, transferred to MCM pursuant to issuance of sale certificate on an "as is where is", "as is what is", "as is how is", "whatever there is" and "no recourse basis". The sale process will stand concluded at the existing Plant location of the Corporate Debtor in Vijayawada, Andhra Pradesh, India upon the issuance of the sale certificate. • The Process Document clarifies that after issuance of Sale Certificate, the successful bidder, in this case MCM, will be required to complete the entire process of taking possession of the assets and removing the same from the premises of the Corporate Debtor. Hence, the sale process will conclude in India upon issuance of Sale Certificate by the Liquidator and MCM will be responsible for dismantling, transporting and exporting the Phase III Assets to Myanmar. In the light of the same, the Liquidator will not be acting in the capacity of an exporter. • We request your good offices to take the above facts into consideration while your assessment of the Advance Ruling Application in accordance with applicable laws. • It is pertinent to note that currently, ....
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.... India. The Applicant 's intention to procure the said assets during the liquidation process is to transfer the same to his own business outside India , in this instant case i.e., Myanmar. The applicant has further filed the Representation of M/s. Lanco Kondapalli Power Limited, as an Liquidator and submitted that the Corporate Insolvency Resolution Process was commenced against the Corporate Debtor ("CIRP") vide Order of NCLT, Hyderabad Bench dated April 23, 2019.Since no Resolution plan was approved pursuant to the CIRP, Application was filed with NCLT for initiation of liquidation process. By way of Order dated April 16, 2021, Hon'ble NCLT commenced liquidation proceedings of the Corporate Debtor as per Provisions of Insolvency and Bankruptcy Code, 2016 and the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, and Mr. Pankaj Dhanuka was appointed as Liquidator ("Liquidator"). As per Terms of the Process Document and LOI, MCM being the successful bidder is required to pay the entire sale consideration and is required to bear all applicable taxes and duties as may be applicable. No incidence of tax or other rates will be applicable on ....
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....f services for a consideration whether or not in the course or furtherance of business; [and] (c) the activities specified in Schedule I, made or agreed to be made without a consideration; Now it is imperative to analyze whether the said transactions satisfy the conditions stipulated under section 2(6) of IGST Act, 2017 to qualify it as export of service. The export of services has been defined in sub-section (6) of the section 2 of the IGST Act, 2017 as extracted below; "export of services" means the supply of any service when,- (i) the supplier of service is located in India; (ii) the recipient of seruice is located outside India; (iii) the place of supply of service is outside India; (iv) the payment for such service has been received by the supplier of service in convertible foreign exchange; and (v) the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8; Explanation 1 of the Section 8 of the IGST Act provides for the conditions wherein establishments of a person would be treated as establishments of distinc....
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....t of the said foreign company outside India, shall be treated as supply between establishments of distinct persons and shall not be considered as "export of services" in view of condition (v) of sub-section (6) of section 2 of IGST Act. Similarly, any supply of service by a company incorporated in India to its branch or agency or representational office, located in any other Country and not incorporated under the laws of the said country, shall also be considered as supply between establishments of distinct persons and cannot be treated as export of services. • 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 separate "person" under the provisions....