TaxTMI 
TaxTMI 
2025 (1) TMI 583
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....ing the Order-in-Original. (ii) The petitioner is registered under provisions of CGST Act, 2017 and is engaged in the business of content integration by adding insight (smart data which is run through AI techniques and human curation) that helps resolve challenges in business. (iii) The petitioner is a wholly owned subsidiary of InfoDesk. Inc. situated at USA and is established exclusively for the purpose of servicing its parent organizations' technical requirements and for that purpose, the petitioner has developed products and services for InfoDesk. Inc. It is the case of the petitioner that it manages IT infrastructure, editorial and content creation activities, customer support and custom usage report generation for the clients of its parent company. (iv) The services agreement dated 21st February 2011 was entered between the petitioner and its parent company providing information services and consultancy in the business of software development, editorial services and IT services. (v) It is the case of the petitioner that in pursuance of the services agreement, the parent company raises its requirements and queries which are assigned to the p....
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.... rejected the refund application by passing a detailed order-in-original in Form GST RFD-06 on the ground that the date of filing of refund claim as per acknowledgment in Form GST RFD-02 is 25th October 2019 and not 26th December 2018 and therefore, the same would be considered as the date when the refund application was filed online by the petitioner. Any ground for rejection of refund claim was that the petitioner was not entitled to benefit of supply of service of export under Section 2(6) of IGST Act as the software consultancy services provided by the petitioner was more in nature of intermediary services to its parent company. (xii) Being aggrieved by the order-in-original, the petitioner preferred an appeal before the Joint Commissioner, CGST & Central Excise (Appeals), Vadodara, who, by order dated 1st October 2020, rejected the appeal filed by the petitioner, upholding the rejection of the refund application by respondent No.3. Thereafter, a summary of demand in Form GST APL-04 was issued. (xiii) As the Appellate Tribunal in terms of Section 110 of CGST Act is not available, the petitioner has challenged the order passed by the Appellate Authority by pref....
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.... service provided by the petitioner between the petitioner and its parent company. It was submitted that on perusal of the service agreement, it is apparent that the petitioner is not engaged in providing ancillary services to its parent company. It was submitted that the petitioner had already filed its refund claim within a period of two years as prescribed by Section 54(1) of the CGST Act and merely because the same refund application was uploaded along with the details subsequently would not debar the petitioner on the ground of limitation. 9. In support of the submission, reliance is placed on the decision in the case of Charomotolab and Biotech Solutions vs. Union of India, reported in 2022 (67) G.S.T.L. 160 (Guj.) holding as under: "5.4 Respondents relied on Circular dated 15.11.2017, which in its clause 2.4 provides that application for refund of unutilised input tax credit on inputs or input services used in making zero-rated supplies shall be filed in FORM GST RFD01A in the common portal and the amount claimed as refund shall get debited in accordance with Rule 89(3) of the CGST Rules from the amount in the electronic credit ledger to the extent of the claim. ....
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....ll be submitted to the jurisdictional officer with the necessary documents. Now the petitioner has filed the application on the common portal within time, but the documents to be physically furnished along with the application was physically submitted on 17.10.2019. It is on this count that the claim of the petitioner is treated beyond limitation. 5.9 The Circular provided for procedure of filing application and filing of physical application with documents cannot have an overriding operation to the detriment of the assessee, who filed the refund application in the common portal of the respondents, which was acknowledged and ARN was also generated. The date of application filed on the portal has to be treated as one to reckon whether it was filed within two years as contemplated under Section 54 of the CGST Act." 10. It is not in dispute that the petitioner has submitted physical application and the date of such submission is required to be considered by the respondent authority. 11. In support of his submission with regard to the denial of refund claim by considering supply of service to its parent company to its intermediary, it was submitted that the petitioner ha....
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....ch is required to be answered is as to whether the service provided by the petitioner should be considered as export of service or intermediary service under provisions of IGST Act. 16. As per Section 2(13) of the IGST Act, intermediary means a broker, an agent or any other person, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account. We have therefore to consider the terms and conditions of the service agreement between the petitioner and its parent company. Relevant terms of the agreement are as under: "1.1.1 To assist the US entity in carrying on the business of providing information services and consultancy in business of software development, editorial services, customer support, sales and marketing of the InfoDesk suite of information management products. To set up consultations and meetings between globally based experts and globally based clients. To participate in any business of consultants, agents, sub-agents, liaison agents/liaison sub-agents for US entity and foreign clients/principals for the....
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....over, on terms of payment, payment is to be received by the petitioner from its parent company on monthly basis and fee equal to cost incurred by the petitioner plus 8% mark up on costs. Meaning thereby, the petitioner is also earning the profit of 8% on the cost incurred by it in providing services to its parent company. Clause 4.4 of the agreement clearly stipulates that the petitioner is not entitled to receive any other amount for providing services and it has to bear its all expenses including taxes, etc. Moreover, clause 7.2 of the service agreement also provides for settlement of disputes between the petitioner and its parent company arising out of the agreement to be amicably settled through friendly negotiation and in case no settlement of the dispute, then the same should be resolved through India International Economic and Trade Arbitration Commission, South India Sub- Commission for arbitration in accordance with the Rules of Arbitration of India International Economic and Trade Arbitration Commission in effect at the time of applying for arbitration, which reads as under: "7.2 All disputes arising from the execution and performance of or in connection with thi....
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....provided by the petitioner would fall within the scope of the definition of the term 'export of service' under Section 2(6) of the IGST Act." 20. The Punjab and Haryana High Court in case of Genpact India Pvt. Ltd. vs. Union of India and others, reported in 2022 (11) TMI 743 has held as under: "In the pre-GST regime the term "intermediary services" was defined under Rule 2 (f) of the Place of Provision of Service Rules 2012. Under the 2012 Rules "intermediary services" were defined to mean a broker/an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the 'main' service) or a supply of goods, between two or more persons, but does not include a person who provides the main service on his account. A perusal of the definition of "intermediary" under the service tax regime vis-a-vis the GST regime would show that the definition has remained similar. Even as per circular dated 20.09.2021 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (GST Policy Wing), the scope of "intermediary" services has been dealt....