9911796707
TMI Blog2024 (5) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... D THAT:- The impugned order passed by the first respondent fairly concludes that the petitioner has satisfied the requirements of Section 2(6)(i) to (iv) of IGST Act, 2017. Admittedly, the petitioner and its subsidiary are two distinct entities and therefore, it cannot be said that the petitioner has not satisfied the requirements of Section 2(6)(v) of IGST Act, 2017. The doctrine of the authority for advance Ruling IN RE: SEGOMA IMAGING TECHNOLOGIES INDIA PRIVATE LIMITED [ 2018 (12) TMI 650 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] cannot be applied to the facts of this case - It cannot be said that the petitioner and its subsidiary are not merely establishment of a distinct person in accordance with the explanation I in Section 8 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recipient and supplier should not merely be distinct persons, which means both the persons i.e., supplier of service and recipient should not be related persons, supplier and recipient should not be having relationship of holding company or subsidiary respectively or vice versa. etc. Any transaction between the supplier and recipient of services should be at arm's length and both of them shall be independent, possess equal bargaining power and are not under pressure or duress. As stated above and as admitted by the appellant, in the instant case, Vuram Australia Pty Ltd., is their foreign subsidiary which is an extended arm of M/s. Vuram Technology Solution Ltd., and obviously both the appellant and the recipient of services have busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of this it appears that applicant is carrying on business in Indian territory as a representational office of Segoma Israel and thus is covered by Explanation 1 of Section 8 of the IGST Act. Applicant's submission in this regard is that they are established under the Indian Companies Act having separate PAN number and therefore it is not a branch, agency or representational office of Segoma Israel. However, the statutory compliances made by an applicant in a country, in this case India, would in no way alter the status or relationship between parties as discussed above. Thus applicant also failed to satisfy this condition as well............. In view of my above discussion I hold the appellant's services exported to M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly affirmed the order of the second respondent by confusing the status of the subsidiary as a distinct person in accordance with explanation 1 in Section 8 of IGST Act, 2017. 7. It is further submitted that the issue also stands now clarified by the clarification by the Central Board of Indirect Taxes and Customs vide Circular No.161/17/2021-GST dated 20.09.2021 bearing Ref.F.No.CBIC-20001/8/2021- GST. Para 5.1 and 5.2 of the said circular reads as under:- "Clarification:- 5.1. In view of the above, it is clarified that a company incorporated in India and a body corporate incorporated by or under the laws of a country outside India, which is also referred to as foreign company under Companies Act, are separate persons under CGST Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in (2023) 99 GST 948 (Delhi): (2023) 78 GSTL 24 (Delhi). Specifically, a reference was made to para 10 and 11 following the above circular, which reads as under:- "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 and the same is beyond any pale of controversy in view of the Circular dated 20-9-2022 issued by the CBIC. The said circular, in unambiguous terms, clarifies as under: "5.1 In view of the above, it is clarified that a company incorporated in India and a body corporate incorporated by or under the laws of a country outside India, which is also referred to as foreign company under Companies Act, are separate persons under CGST Act, and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. But respondent no. 1 completely ignored the same and proceeded to pass the order mechanically. " 9. The learned Standing Counsel for the respondents would submit that the impugned order of the second respondent as also the first respondent are well reasoned and do not warrant any interference under Article 226 of the Constitution of India. 10. It is further submitted that the circular mentioned above was not available on the date of the order passed by the respondent and therefore, the petitioner cannot take advantage of the above circular. Hence, he prays for dismissal of this writ petition. 11. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Standing Counsel for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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