TaxTMI 
TaxTMI 
2025 (6) TMI 88
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....s registered with the service tax / GST Department and is providing software development services. The petitioner which was earlier known as 'SWC INDIA INVESTCO LLP' entered into Master Service Agreement vide Annexure-H dated 01.04.2019 with 'THE ATHENE GROUP LLC, a limited liability company having its office in USA and it is an overseas entity and recipient of the services supplied by the petitioner which amounts to export of services, on account of which, the petitioner was not liable to pay service tax / GST on the said supply of services. 2.1 The petitioner filed a refund claim of IGST for April, 2022 and May, 2022 in a sum of Rs.76,16,997/- under Section 54 of the CGST Act, which was allowed by the 3rd respondent vide Order-in- Original dated 28.07.2022 passed in favour of the petitioner. Aggrieved by the said Order-in-Original, the Revenue filed an appeal before the appellate authority which proceeded to pass the impugned order dated 01.09.2023 allowing the appeal and thereby, rejecting the refund claim of the petitioner, who is before this Court by way of the present petition. 3. Heard learned counsel appearing for the petitioner and learned counsel appearing for the r....
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....rth therein and in accordance with the Agreement. Service Provider agrees and undertakes that Athene shall have right to extend or provide the Services to its Clients, customers, including Athene's affiliates, or any other entity it may deem appropriate. 1.2. It is the intent of the Parties that the Agreement shall function as the master agreement under which individual SOWs shall be mutually agreed and executed between the Parties in writing. 1.3. Each SOW shall be considered integral part of the Agreement. However, in the event of any conflict between the terms of the Agreement and a SOW, the relevant SOW shall prevail over this Agreement. 2. Payment Terms 2.1. In consideration of the provisioning of the Services by Service Provider under each SOW, Athene shall pay an amount equal to (a) Service Provider's total cost, that is, cost and expenses relating to the provisioning of the applicable services under such SOW, including, without limitation, salaries of employees, compensation to third party providers, office rent and expenses, travel costs and administrative expenses, depreciation and amortization which are attributable to the Serv....
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....xes") that is levied hereunder shall be to the account of Athene provided, that, each Party shall bear its own income taxes that are based on its own net income. 2.5. Applicable Taxes at the prevailing rate at the time of invoice will be shown as a separate line item on the face of invoice. Invoices delivered by Service Provider shall be in accordance with the applicable provisions of Indian Goods and Services Tax statutes. 2.6. Where Athene is required by law to deduct withholding Tax or Tax deducted at source ("WHT") from a payment to Service Provider, Athene will pay such WHT to the applicable tax authority, remit the balance amount after the deduction of the WHT to Service Provider and forward to Service Provider on a timely manner an official WHT certificate. 3. Term and Termination 3.1 The Parties agree that this Agreement and the rights and obligations of the Parties under this Agreement shall become effective from the date here of ("Effective Date") and shall be valid until the expiry of the date that is 10 (ten) years from the Effective Date ("Initial Term") and in the event the Agreement is not terminated prior to expiry of the Initial ....
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....tice of thirty (30) days in the event a resolution for winding up of Athene is passed, or any petition for winding up of Athene is admitted by a court of competent jurisdiction or a provisional liquidator or receiver is appointed and such order has not been set aside within 180 days from the admission of such steps/proceedings or Athene is ordered to be wound up by court. 3.5 The provisions relating to payment terms (Clause 2), intellectual property ownership (Clause 4), confidential information (Clause 5), non-compete (Clause 7), limitation of liability and indemnification (Clause 9) and arbitration and governing law (Clause 13) shall survive termination or expiration of this Agreement. 4. Intellectual Property Ownership 4.1 Service Provider acknowledges and agrees that all work or materials developed or provided by Service Provider for or on behalf of Athene under this Agreement, or in connection therewith (collectively, the "Works"), are exclusively owned by Athene. 4.2 Service Provider further acknowledges and agrees that, to the fullest extent allowed by law, all of the Works are "works made for hire", as that phrase is defined in the Copyri....
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.... Provider except to the extent that such disclosure or use is reasonably necessary to the performance of Services of Service Provider. 5.2 These obligations of confidentiality will extend for a period of twelve (12) months after the termination of this Agreement, but will not apply with respect to information (i) that is independently developed by a Party without reference to any confidential or proprietary information of the other Party, (ii) that was or becomes generally available to the public other than as a result of action or inaction by a Party, (iii) that was within a Party's possession prior to such information being furnished by the other Party (provided that the source of such information was not known to be bound by an obligation of confidentiality with respect to such information) or (iv) which becomes available to a Party on a non-confidential basis from a source other than the other Party or its representatives, provided that such source is not known to the Party receiving such information, after reasonably inquiry, to be bound by an obligation of confidentiality with respect to such information. 6. Duties and....
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....nd in any capacity whatsoever, perform or compete or solicit the performance of services which are similar to or competitive with services of the type performed or offered by Athene to any person including to (i) any Clients or (ii) any current client prospect of Athene for whom Service Provider directly or indirectly assisted in the preparation or submission of a proposal made by Athene to such client prospect during the one (1) year period preceding Service Provider cessation of work. 8. Service Provider Warranties Service Provider warrants that it has the knowledge, experience and skill to perform the Services, and that it will perform the Services according to the specifications described in this Agreement and SOW in a professional and workmanlike manner. Service Provider warrants that the performance of its Services will not result in the infringement of any patent, copyright, trade secret, or other proprietary right of any third person. 9. Limitation of Liability and Indemnification Neither Party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to ....
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....ator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The Parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Delaware. The arbitration will be held in Delaware. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be enforced in any Court of competent jurisdiction. Each of the Parties hereby expressly and irrevocably submits to the exclusive jurisdiction of the State of Delaware. Each of the Parties hereby expressly and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought before any such arbitrator that any such dispute has been brought in an inconvenient forum. 14. Attorneys' Fees If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing Party will be entitled to reasonable attorneys' fees and costs. 15. Severability If any term of....
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....o the account of Service Provider. IN WITNESS WEHREOF, the Parties have executed this Agreement by their duly authorized representatives." 5. A perusal of the material on record will indicate that under identical circumstances in the case of M/s. Columbia Sportswear India Sourcing Pvt. Ltd., vs. Union of India & others - W.P.No. 12116/2024 & connected matters Dated 26.04.2025, this Court came to the conclusion that the petitioner was not an 'intermediary' under Section 2 (13) of the IGST Act and provisions of the Finance Act, 1994 and the services provided by the petitioner to its overseas service recipients / entities are that of an independent service provider which qualify as export of services under the service tax provisions and 2 (6) of the IGST Act and allowed and disposed of the petitions as hereunder:- 11. A conspectus of the above discussion would indicate that the legal position regarding what would constitute intermediary services vis-a-vis a principal to principal relationship can be summarised as under: * In terms of Section 2 (13) of the IGST Act, 2017, the definition of what is an intermediary would show that it would mean a broker or a....
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....incipal to the agent should result in a fiduciary relationship. The fiduciary relationship is the manifestation of consent by one person to another to act on his or her behalf and subject to his or her control, and the reciprocal consent by the other to do so; d) As the business done by the agent is on the principal's account, the agent is liable to render accounts thereof to the principal. An agent is entitled to remuneration from the principal for the work he performs for the principal. * Absence of these ingredients would show that the relationship was not really one of agency but of an independent service provider. This is clear from the circular set out for data hosting services where it is clear that when a person does data hosting services for a foreign company and the foreign company uses this to store third party data, the person providing such services is doing it without any contact with the third party and therefore, cannot be called an intermediary as he does not facilitate or arrange. He is only doing the said services on his own account to the foreign company who could store any data on that platform. * Therefore, even if there are thre....
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....c., in the facts and circumstances obtaining in the instant cases as set out supra analyzing the said agreements, I am of the considered opinion that the petitioner is not an 'intermediary' under Section 2 (13) of the IGST Act and provisions of the Finance Act, 1994 and the services provided by the petitioner to its service recipients are that of an independent service provider which qualify as export of services under the service tax provisions and 2(6) of the IGST Act and consequently, the impugned orders and demand of the respondents deserve to be quashed by issuing further directions in this regard for the following reasons: (i) There are only two persons in the subject agreements; (ii) The petitioner renders services on its own account to the service receiver located outside India and it does not enable supply between the foreign recipient and the third parties; (iii) The acts of the petitioner are that of an independent contractor and it does not represent or bind the foreign client in the course of executing its services. (iv) The foreign recipient, therefore, remunerates the petitioner by way of a service fee for the services rendered whi....
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....mind the Circular No. 183/15/2022-GST dated 27.12.2022 and Circular No. 193/05/2023-GST dated 17.07.2023 and in accordance with law. ORDER IN W.P.No.3420/2023 (i) W.P.No.3420/2024 is hereby partly allowed. (ii) The impugned Order-in-Appeal dated 12.08.2022 vide Annexure-A passed by the respondents insofar as they relate to rejection of the refund claim of the petitioner pertaining to the issue of 'intermediary / intermediary services' are hereby quashed by holding that the services provided by the petitioner do not fall under the definition of 'intermediary services' and that the same is considered as export of services. (iii) The impugned orders insofar as they relate to rejection of the refund claim of the petitioner on the ground that they are barred by limitation under Section 54 of the CGST Act are hereby set aside by holding that the refund claims of the petitioner are not barred by limitation in the light of the CBIC Notification bearing No. 13/2022-Central Tax dated 05.07.2022 which is applicable to the refund claim of the petitioner; (iv) The respondents are directed to grant/pay refund in favour of the petitioner together with ....