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TMI Blog2023 (9) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents by the petitioner. But respondent no.1 completely ignored the same and proceeded to pass the order mechanically. Although, it is mentioned that the petitioner is an intermediary but there is no ground whatsoever for holding the said view. The terms of the Agreement are unambiguous. The petitioner has provided services on principal-to-principal basis. The services provided by the petitioner are on its own count and not facilitated by provision of services from any third-party services provider - the petitioner is a registered EOU for the services as exported by it. The respondents are directed to forthwith process the petitioner s claim for refund along with interest - petition allowed. - HON'BLE MR. JUSTICE VIBHU BAKHRU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates that the petitioner s claim was proposed to be rejected on the ground that it did not satisfy the condition as laid down in condition (v) of Section 2(6) of the Integrated Goods Service Tax Act, 2017 (hereafter the IGST Act ), namely, that 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 . 5. The respondents also set out the Explanation I to Section 8 of the IGST Act, which is reproduced below: Explanation 1. For the purposes of this Act, where a person has, (i) an establishment in India and any other establishment outside India; (ii) an establishment in a State or Union territory and any other estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner s application for refund on the same ground as stated in the show cause notice. The respondents, after referring to the provisions of Section 2(6) of the IGST Act also mentioned that the petitioner was an intermediary in terms of Section 13 of the IGST Act read with Circular dated 18.07.2019. 9. The petitioner is a separate entity and it is settled law that identity of an incorporated company is separate from that of its shareholders. This fundamental proposition was reiterated by the Constitution Bench of the Supreme Court in Bacha F. Guzdar v. Commissioner of Income-Tax: AIR 1955 SC 74. 10. The services rendered by a subsidiary of a foreign company to its holding are not covered under Section 2(6)(v) of the IGST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person under Explanation 1 of section 8 of IGST Act 2017. Such supplies, therefore, would quality as export of services , subject to fulfilment of other conditions as provided under sub-section (6) of section 2 of IGST Act. 11. It is clear from the above that the impugned order has been passed without application of mind and in disregard of the provisions of law. The relevant circular was brought to the notice of the respondents by the petitioner. But respondent no.1 completely ignored the same and proceeded to pass the order mechanically. 12. Although, it is mentioned that the petitioner is an intermediary but there is no ground whatsoever for holding the said view. The terms of the Agreement are unambiguous. The petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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