TaxTMI 
TaxTMI 
2025 (11) TMI 1682
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.... has erred in classifying the service as export of service without examining nature of service, place of provision of service and without examining the applicability of sub-sections (3) to (13) of Section 13 of Integrated Goods & Services Tax Act, 2017 (for short 'IGST Act'). Therefore, supply does not qualify as export and refund is erroneous. The petitioner being aggrieved thereto has preferred the instant Writ Petition. 3. Learned counsel for the petitioner has drawn the attention of this Court to the Refund Sanction Order and submitted that sanction of the refund was made after satisfying that the petitioner has made zero rated supply of services and as per the Adjusted Total Turnover calculated in terms of Rule 89(4) of the Central Goods & Services Tax Rules, 2017 (for short 'CGST Rules'), the net input tax credit would be Rs. 1,43,97,841/- for which refund was sought. The Refund Sanctioning Authority found that the claim was within the limitation period. The petitioner had filed all the due returns and there were no dues pending for recovery from them. The provisions of unjust enrichment in terms of Section 54(8) of Central Goods & Services Tax Act, 2017 (for short 'CGST A....
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....rect. He also took note that the petitioner had submitted agreement copy, its incorporation certificate as well as service recipient. The petitioner had also submitted the name change certificates of both the companies. It was further observed from the service agreement that the petitioner desired to obtain information technology services to support their business operations and have necessary resources to provide such services. They have also submitted additional documents about the services provided. However, in a cryptic manner, the appellate authority has concluded that the invoices and agreement show that the petitioner is working as intermediary, an agent of the service recipient. No scrutiny or analysis of the documents submitted has been made by the appellate authority to arrive at the aforesaid conclusion that the petitioner is providing intermediary services in terms of Section 2(13) of IGST Act. Hence, the place of provision of service is India i.e., location of service provider in terms of Section 13(8)(b) of IGST Act. The appellate authority committed a serious error in setting aside the Refund Sanction Order by holding that the Refund Sanctioning Authority has erred i....
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....mptions as alleged by the petitioner. The scope of services provided by the petitioner indicates the petitioner's role as intermediary under Section 2(13) of IGST Act. Therefore, their services qualify as intermediary services. The petitioner facilitates or arranges supplies between them and other parties. Learned counsel for the respondents submits that the petitioner should have availed the remedy of appeal before GST Tribunal under Section 112 of CGST Act instead of approaching this Court under writ jurisdiction where issues or facts are sought to be raised. 6. We have accorded consideration to the submissions of the learned counsel for the parties. We have referred to the relevant material facts above. We have also perused the order of the Refund Sanctioning Authority and the impugned order passed by the appellate authority. The discussion and findings rendered by the appellate authority in the impugned order from paragraphs 15 to 23 are quoted hereunder: "15. I have gone through records of the case, cross objections and submissions at the time of personal hearing, order in original; agreement copies etc. 16. Appellant contended that BRCs have been issue....
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.... the invoices and agreement provided it is evident that respondent is working as intermediary an agent of the service recipient. 21. It is evident the scope of services clause of agreement, respondent is providing intermediary services in terms of section 2(13) of the IGST Act 2017 Hence the place of provision of service is India i.e. location of service provider in terms of section 13(8)(b) of the IGST Act 2017. 22. Refund sanctioning authority has erred in classifying the service as export of service without examining nature of service, place of provision of service and without examining the applicability of sub-section (3) to (13) of Section 13 of Integrated Goods & Services Tax Act, 2017. Therefore supply does not qualify as export and refund is erroneous. 23. In view of the above findings and discussion, I pass the following order; Order I allow the appeal filed by the department by setting aside the order of refund sanctioning authority." The departmental appeal was preferred on the following two questions. "Whether the order of the Refund Sanctioning Authority in sanctioning refund of Rs. 1,43,97,841/- iii. Without ....