Telangana High Court
Sri Avantika Contractors I Limited, vs Appellate Authority For Advance Ruling ... on 6 August, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
*THE HON'BLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
+WRIT PETITION No.8405 of 2023
% 06-08-2024
#Sri Avantika Contractors (I) Limited.
...Petitioner
vs.
$Appellate Authority for Advance Ruling (GST) and others.
... Respondents
!Counsel for the Petitioner: Sri C. V. Narasimham.
^Counsel for Respondents: 1. Sri Dominic Fernandes, Senior Standing
Counsel for CBIC.
2. Ms. Shireen Sethna Baria for
respondent No.2.
<Gist :
>Head Note :
? Cases referred
1. 2017 SCC OnLine Jhar 290
2. (2004) 3 SCC 553
3. (2023) 3 SCC 629
4. (1998) 8 SCC 237
5. (2024) 162 taxmann.com 276 (Gujarat)
6. (2023) 147 taxmann.com 212 (Bombay)
7. 1978 (1) SCC 405
8. 2015 (322) E.L.T 587 (SC)
9. (1985) 1 SCC 591
10. (2004) 11 SCC 641
11. (2007) 5 SCC 447
2
SP, J & RRN, J
Wp_8405_2023
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT PETITION No.8405 OF 2023
(Per Hon'ble Sri Justice Sujoy Paul)
Between:
Sri Avantika Contractors (I) Limited.
...Petitioner
vs.
Appellate Authority for Advance Ruling (GST) and others.
... Respondents
JUDGMENT PRONOUNCED ON: 06.08.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
SP, J & RRN, J
Wp_8405_2023
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.8405 OF 2023
ORDER:
(per Hon'ble SP,J)
This Writ Petition filed under Article 226 of the Constitution
impugns the Order-in-Appeal (OIA) No.AAAR/04/2022 dated
16.07.2022, whereby the view of the Advance Ruling Authority
dated 05.08.2021 (Annexure P-18) was affirmed.
Petitioner's case:-
2. The Government of India (GoI) entered into Memorandum of
Understanding (MoU) with Government of Maldives for
constructing a Police Academy funded by the GoI. In turn, the
GoI appointed respondent No.2 i.e., National Buildings
Construction Corporation Ltd., (NBCCL) to execute the
construction of Police Academy by itself or through a contractor.
NBCCL awarded contract to the petitioner.
3. In order to complete the work at Republic of Maldives
(Maldives), the NBCCL set up an office and in turn the petitioner
also set up their office at Addu city, Maldives. The Authorized
Dealer Bank {Oriental Bank of Commerce (OBC)}, which is acting
on behalf of Reserve Bank of India approved the establishment of
branch office of petitioner in Maldives.
SP, J & RRN, J
Wp_8405_2023
4. The stand of the petitioner is that it exported various goods
to its Maldives office. The turnover of such goods was declared
under the GST as 'zero rate supplies'. The petitioner treated the
consideration received towards 'works contract service of
construction' which was completely executed in the territory of
Maldives through their Maldives establishment as outside the
scope of GST laws of India. Respondent No.2 did not pay GST on
the construction to the petitioner and also opined that supplies
rendered outside India are beyond the purview of GST.
5. Learned counsel for the petitioner placed reliance on
agreement dated 08.07.2016 (Annexure P-5) to show that NBCCL
has awarded contract to the petitioner for setting up of the
Institute of Security and Law Enforcement Studies (ISLES) at
Addu city, Maldives. Clause 1.1 of the said agreement clearly
shows that construction was to be carried out in Addu city,
Maldives. The Ministry of External Affairs, GoI, New Delhi,
issued certificate dated 14.07.2016 (Annexure P-7), which makes
it clear that NBCCL working under the aegis of Ministry of Urban
Development has been appointed by the Ministry of External
Affairs, GoI, New Delhi, as 'Executing Agency' for construction of
ISLES at Addu city, Maldives. The petitioner has been duly
awarded contract by NBCCL on behalf of Ministry of External
SP, J & RRN, J
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Affairs, GoI, New Delhi, for implementation of said project. In
turn, the petitioner got 'Certificate of Re-registration' dated
22.02.2017 (Annexure P-8), which was issued by the Registrar of
Companies, Ministry of Economic Development, Republic of
Maldives. The petitioner also entered into a rental agreement in
order to have a 'fixed establishment' in Maldives. The petitioner
during the time of construction of said building got employment
approval from the Maldives Government in Addu city for its
number of employees. Few of such documents are also placed on
record as Annexure P-9.
6. Much emphasis is laid on the agreement of petitioner with
Ministry of Economic Development, Republic of Maldives dated
18.04.2017 (Annexure P-10). The petitioner got itself registered
under Maldivian GST Law and notification dated 19.02.2020
(Annexure P-11) was issued. A letter dated 27.12.2017
(Annexure P-13) is relied upon to submit that the OBC informed
the petitioner that consideration for project will be paid by
NBCCL in Indian rupees against submission of running bills
passed during the progress of project ISLES at Addu city,
Maldives.
SP, J & RRN, J
Wp_8405_2023
7. During the course of arguments, attention of this Court is
drawn to an agreement entered into between Ministry of External
Affairs and NBCCL dated 11.03.2015 (Annexure R-2). Clause 6.1
(e) and Clause 8.0 were referred to show that the service tax or
any other tax, levy or duty shall be reimbursed to the executing
agency i.e., NBCCL. Clause 8.0 provides that reimbursement can
be to NBCCL or its designated contractor/sub-contractor or
supplier. The NBCCL opened its office at Addu city, Maldives, as
is evident from the document dated 16.12.2020 (Annexure-3)
filed with the counter of respondent No.2. Another contract filed
with the rejoinder is referred to show that it is entered into
between NBCCL and the petitioner and clause 18.2 of this
contract makes it clear that taxes, duties and levies shall be
reimbursed by NBCCL to the contractor/petitioner.
8. Learned counsel for the petitioner submits that the
construction of ISLES was completed and the same was
inaugurated in the presence of high dignitaries of India and
Maldives. Photographs of the event are placed on record with the
counter of respondent No.2. It is submitted that when contract
was entered into between GoI and Government of Maldives and
work started, service tax regime was holding the field. The GST
law came into force with effect from 01.07.2017.
SP, J & RRN, J
Wp_8405_2023
9. In furtherance of the petitioner's letters dated 04.07.2017
and 22.08.2017, NBCCL wrote a letter dated 13.04.2018 to the
petitioner which was filed with the counter of respondent No.3.
Learned counsel for the petitioner, by taking this Court to this
letter, submits that NBCCL obtained a legal opinion wherein it
was opined that the ISLES project executed in Addu city of
Maldives is neither taxable under the Service Tax regime before
01.07.2017 nor thereafter under the GST regime. Hence, no
amount of GST is to be reimbursed to the contractor/petitioner.
However, it was opined in the letter that since a huge amount of
Rs.29.85 crores is involved in respect of GST, the petitioner may
request for an 'advance ruling' from GST authority on the
taxability issue. In turn, the petitioner prayed for advance
ruling. The competent authority by order dated 05.08.2021 gave
advance ruling against the petitioner.
10. Aggrieved, the petitioner preferred an appeal which was
rejected by the impugned OIA dated 16.07.20222 (Annexure P-1).
This appellate order is subject matter of challenge in this Writ
Petition.
11. Learned counsel for the petitioner, by placing reliance on
various provisions of the Central Goods and Services Act, 2017
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(CGST Act) and Integrated Goods and Services Tax Act, 2017
(IGST Act), urged that the respondents have erred in passing the
advance ruling and affirming it in the appeal. The aim and object
of both the aforesaid acts demonstrates that the law makers
never intended to apply them beyond the territory of India.
Section 2 (56) of the GST Act is relied upon to submit that 'India'
is defined and by no stretch of imagination, the works contract
service provided by the petitioner at Maldives falls within the
territory of India. Section 3 (119) talks about 'works contract'
and there is no dispute between the parties that the petitioner
performed the work at Addu city, Maldives in furtherance of a
'works contract'.
12. The bone of contention of learned counsel for the petitioner
is that both the authorities while passing the order dated
05.08.2021 and OIA dated 16.07.20222 have not considered
Section 2 (14) and 2 (15) of the IGST Act in correct perspective
and also failed to consider Explanations 1 and 2 of Section 8 and
Section 13 (1) & (4). The authorities erred in interpreting proviso
to sub-section (3) of Section 12. A combined reading of Section 2
(14) (b), 2 (15) (b), Section 8 (Explanations 1 and 2), proviso to
Section 12(3) and Section 13 leaves no room for any doubt that
GST law cannot be made applicable beyond the territory of India
SP, J & RRN, J
Wp_8405_2023
and in relation to a 'works contract service' provided by the
petitioner through his 'fixed establishment' at Addu city,
Maldives. The 'location' of the petitioner/supplier for present
purpose must be the location of 'fixed establishment' at Addu city
and not at the registered office at Hyderabad (Telangana).
13. The alternative submission of learned counsel for the
petitioner is that even assuming that the petitioner is covered
under the GST law of India and he is required to pay tax based
on it, in view of terms of contracts dated 11.03.2015 and another
filed with the rejoinder, the tax amount is required to be
reimbursed by the GoI to NBCCL and in turn by NBCCL to the
petitioner. Thus, it is an arrangement because of which money
will go from one pocket to another pocket of the Government.
The petitioner cannot be made to suffer and pay the tax under
the GST law of India for the activity carried out in the Maldives.
14. It is further submitted that the petitioner has already paid
taxes under the GST law of Maldives. The object behind bringing
GST and IGST Acts is to levy tax for the activity which takes
place within the territory of India and not outside the territory of
India. Lastly, on the basis of judgment of Abhishek Kumar v.
SP, J & RRN, J
Wp_8405_2023
NBCCL 1, it is submitted that respondent No.2 is a 'State' within
the meaning of Article 12 of the Constitution and is amenable to
the writ jurisdiction of this Court. Being a 'State', respondent
No.2 is bound to act fairly and fulfill its contractual obligation
and reimburse the tax to the petitioner. In turn, it can get the
reimbursement from the Central Government. Reference is made
to ABL (ABL International Ltd. v. Export Credit Guarantee
Corpn. of India Ltd. 2 and Gas Authority of India Ltd. Indian
Petrochemicals Corporation Ltd. 3.
Contention of Revenue:
15. Countering the argument of learned counsel for the
petitioner, Sri Dominic Fernandes, learned Senior Standing
counsel for CBIC, submits that as per Section 2 (105) of the
CGST Act, the petitioner is a 'supplier'. Similarly, Section 2 (93)
of the CGST Act, which defines 'recipient', makes it clear that
where a consideration is payable for supply of goods or services
or both, the person who is liable to pay that consideration is the
'recipient'. In the instant case, the consideration was payable by
NBCCL, which is located and registered in New Delhi, India.
Section 2 (70) of the CGST Act is pari materia to Section 2 (14) of
2017 SCC OnLine Jhar 290
(2004) 3 SCC 553
(2023) 3 SCC 629
SP, J & RRN, J
Wp_8405_2023
the IGST Act, which describes 'location of the recipient of
services'. As per Clause (a) of Section 2 (14) of the IGST Act,
where a supply is received at place of business for which the
registration has been obtained, shall be the location of such
place of business. Based on this definition, it is urged that in the
present case, the supply, agreement to perform is received at the
place of business for which registration has been obtained by
NBCCL at New Delhi, India. Hence, New Delhi will be the
location for recipient of services. The petitioner and respondent
No.2 did not have any 'fixed establishment' in Maldives as per
Section 2 (50) of the CGST Act.
16. Based on Section 2 (71) of the CGST Act, which is pari
materia to Section 2 (15) (a) of the IGST Act, it is argued that
'location of supplier of services' means where the supply is made
from a place of business for which the registration has been
obtained, the location of such place of business. The agreement
to perform is being made in this case from the place of business
for which registration has been obtained i.e. M/s. Sri Avantika
Contractors (I) Limited, Hyderabad, India.
17. Section 2 (50) of the CGST Act, which is pari materia to
Section 2 (7) of the IGST Act, is referred to highlight the definition
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of 'fixed establishment'. The definition of 'person' mentioned in
Section 2 (84) of the CGST Act is also referred to contend that the
definition of 'person' and definition of 'company' and 'foreign
company' under Section 2 of the Companies Act, 2013 shows
that a 'company' is company incorporated in India and foreign
company is company incorporated outside India are separated
persons under provisions of the CGST Act and hence, both are
separate 'persons' and separate legal entities. Hence, registered
place of business of the petitioner in Maldives cannot be
considered as 'fixed establishment' of M/s. Sri Avantika
Contractors (I) Limited.
18. Furthermore, Sri Dominic Feranandes, learned Senior
Standing counsel for CBIC, submits that no doubt the work
performed by the petitioner at Maldives is based on 'works
contract' as per Section 2 (119) of the CGST Act and relates to
contract of services, yet 'works contract' is essentially a contract.
The contract was between the petitioner and respondent No.2.
The contract was entered into between two parties located in
India which means the location of 'supplier' and 'recipient' both
is in India.
SP, J & RRN, J
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19. It was strenuously contended that Section 16 of the IGST
Act deals with 'zero rated supply' and Clause (a) is about export
of goods or services or both. Section 2 (6) of the IGST Act talks
about 'export of services'. Supply of any such services takes
place when the supply of services is located in India. To bolster
this submission, clauses (i) and (iv) of Sub-section 6 of Section 2
of the IGST Act were referred. Since the petitioner has filed their
returns by declaring the said services rendered as 'zero rated
supply' (exports), the petitioner's contention that they were
located in Maldives for the purpose of CGST and IGST cannot be
accepted. The petitioner has not received any payment in
convertible foreign exchange and for this reason alone, the
present Writ Petition deserves to be dismissed.
20. Section 12 (3) of the IGST Act is referred to 'show the place
of supply of services' and to contend that location of immovable
property is although located in Maldives, location of recipient i.e.,
NBCCL is in New Delhi. Since location of 'supplier' and location
of 'recipient' both are in India, Section 13 of the IGST Act is not
applicable.
21. Sri Dominic Fernandes, learned Senior Standing counsel
for CBIC, placed reliance on the judgment of Supreme Court in
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the case of The Appropriate Authority v. Sudha Patil 4 to
emphasis the scope of judicial review in exercise of power under
Article 226 of the Constitution. It is submitted that this Court is
not required to sit in appeal and revaluate the entire things.
Basically, flaw in decision making process, perversity in decision
and where the impugned decision is such, which no reasonable
person can reach alone can from basis for interference. Even if
two views are possible, one of which has been taken in the
impugned order, no interference is warranted. For the same
purpose, he relied on the judgments of Gujarat High Court in the
case of Isotex Corporation (P.) Limited v. Union of India 5 and
Bombay High Court in the case of Jotun India (P.) Limited v.
Union of India 6.
22. Learned Senior Standing counsel for CBIC further submits
that Sub-section 3 of Section 12 of the IGST Act cannot be read
in the manner suggested by the petitioner and respondent No.2.
Otherwise, the proviso will be otiose. The location of the recipient
must be treated to be at New Delhi and cannot be at Addu city of
Maldives. It is faintly argued that the petitioner has only
challenged the OIA/appellate order and not assailed the order
(1998) 8 SCC 237
(2024) 162 taxmann.com 276 (Gujarat)
(2023) 147 taxmann.com 212 (Bombay)
SP, J & RRN, J
Wp_8405_2023
dated 05.08.2021 (Annexure P-18) in specific passed by the
Advance Ruling Authority.
Contention of respondent No.2:-
23. Sri S.Dwarakanath, learned Senior Counsel appearing for
respondent No.2, at the outset, fairly submits that respondent
No.2 is sailing with the petitioner in all respects, except on the
aspect of reimbursement of tax to the petitioner by respondent
No.2. The learned Senior Counsel urged that the impugned
advance ruling (Annexure P-18) is cryptic in nature and does not
deal with certain statutory provisions of the GST/IGST Act. For
example, the impact of both the 'Explanations' appended to
Section 8 of the IGST Act has escaped notice of the said
authority. The appellate authority confirming the advance
ruling, although referred about certain statutory provisions, did
not deal with it in correct perspective. The impugned orders will
make the petitioner almost remediless so far in-house
mechanism under the aforesaid Acts are concerned. Once
advance ruling is issued which is affirmed by the appellate
authority, in any proceeding under Section 73/74 of the GST Act,
the authorities of almost same level will be influenced, guided
and prejudiced by advance ruling. In this backdrop, the writ
remedy is the only appropriate remedy and case of the petitioner
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falls within the four corners of writ jurisdiction of this Court. As
per the judgment of Supreme Court in Sudha Patil (supra) on
which Sri Dominic Fernandes has placed reliance, the judicial
review of impugned orders is permissible because there exist
patent illegality in understanding and interpreting the provisions
of the Acts.
24. On facts, it is submitted that the petitioner and respondent
No.2 both established their 'fixed establishment' at Maldives. A
huge construction of ISLES had taken place at Addu city of
Maldavies which took several years. During this time, through
their 'fixed establishments', the petitioner and respondent No.2
had monitored and executed the work and had taken care of all
Ministerial activities arsing thereto.
25. By placing reliance on Section 94 of the Companies Act,
2013 of Maldives, learned Senior Counsel urged that re-
registration of petitioner's company was the essential
requirement of the law of said country. The said re-registration
does not mean that a new or separate legal entity came into
being. At best, at a new location i.e., 'fixed establishment' was
created and a bare perusal of proviso to Section 12(3) of the IGST
Act makes it clear that the advance ruling and OIA are bad in
SP, J & RRN, J
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law. Sub-sections (3) and (4) of Section 13 were heavily relied
upon to contend that in a case of this nature where registered
offices of the petitioner and the respondents were situated within
the boundary of India but the works contract service activity has
been admittedly taken place beyond the territory of India i.e., in
Maldives, it is the location of such 'fixed establishment' which
will be the determinative factor.
26. So far question of reimbursement of tax, etc., is concerned,
learned Senior Counsel urged that although respondent No.2
being a 'State' is amenable to writ jurisdiction of this Court, the
prayer for reimbursement is arising out of a contractual
obligation. This prayer cannot be granted in a Writ Petition. The
appropriate remedy for petitioner is under the civil law. To this
extent, respondent No.2 opposed the petition.
Rejoinder Submissions:
27. In rejoinder submissions, the learned counsel for the
petitioner submits that the document dated 16.12.2020
(Annexure P-3) filed with counter of respondent No.2 shows that
between February, 2020 to November, 2020, 436 persons worked
with respondent No.2 at Addu city of Maldives. Thus, this is also
SP, J & RRN, J
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a relevant factor for determining whether there exists a 'fixed
establishment' in Maldives.
28. Apart from this, to counter the argument of the Revenue
relating to filing of 'zero rated returns', it is urged that this is not
the reason for passing the impugned order by Advance Ruling
Authority and Appellate Authority. Reliance is placed on
Constitution Bench judgment of Supreme Court in the case of
Mohinder Singh Gill v. The Chief Election Commissioner 7, to
canvas that validity of order of statutory authority is to be judged
on the basis of grounds mentioned therein and same cannot be
supplemented by filing counter affidavit in the Court.
29. By placing reliance on another judgment of Supreme Court
in the case of Jayaswal Neco Ltd. v. Commissioner of Central
Excise 8, it is submitted that there cannot be any 'estoppel'
against the law. Merely because the petitioner erroneously filed
'zero rated returns', it will not operate as 'estoppel' against the
petitioner. More-so, when the petitioner filed its 'zero rated
returns', GST laws just came into being and there was lot of
confusion amongst the tax payers about its provisions. In this
backdrop, the aforesaid ground deserves to be discarded.
1978 (1) SCC 405
2015 (322) E.L.T 587 (SC)
SP, J & RRN, J
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30. The parties confined their arguments to the extent
indicated above and filed written synopsis. We have heard them
at length and perused the record.
FINDINGS:
31. Taxation fundamentally operates as a legal principle,
structured by a comprehensive set of laws, regulations, and
statutory provisions that establish the processes for calculating,
levying, and allocating taxes. These legal instruments, enacted by
legislative bodies, aim to ensure fairness, equity, and the effective
financing of public services. They are crafted to prevent tax
evasion, stimulate economic progress, and equitably distribute
the tax obligation. However, the application of tax law is not a
mere application of set rules. The determination of taxes involves
a deep dive into the factual aspects of each taxpayer's
circumstances. The practical details of each case including
income streams, allowable deductions, business operations, and
investment activities are critical in applying the legal framework.
Each taxpayer's circumstances are distinct, necessitating a
careful approach to determine tax obligations based on factual
elements.
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Admitted facts:
32. There is no dispute between the parties that an MoU was
entered into between the GoI and Government of Maldives for
construction of ISLES. In turn, another contract was entered
into between the GoI and respondent No.2. Respondent No.2
was treated to be an 'Executing Agency' which is evident from the
document dated 14.07.2016 (Annexure P-7) issued by the
Ministry of External Affairs, GoI and was authorized to get the
work done through any other agency. In turn, another contract
between respondent No.2 and the petitioner was entered into
pursuant to which the works contract services were rendered in
Addu city of Maldives.
33. It is not in dispute that OBC issued letter dated 27.12.2017
to the petitioner and in Clause 5, it is clearly stated that the
petitioner company has already set up site office/liaison office at
Sri Avantika Contractors (I) Limited, Reef View, Feydhoo,
Hirudhu Maa Magu, S.Hithadhoo, Addu City, Republic of
Maldives. Clause 1.1 of the agreement dated 08.07.2016 entered
between respondent No.2 and the petitioner reads as under:
"1.1 SCOPE OF WORK: NBCC has awarded the contract to
M/s Shri Avantika Contractors (1) Limited for the setting up
of the Institute for security and Law Enforcement Studies
(ISLES) at ADDU city in Maldives on the terms and
conditions contained in its letter of Award No.NBCC/GM
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(CPG)/2016/817 dated: 04.06.2016 and the documents
referred to therein. The award has taken effect from
04.06.2016 i.e. the date of issue of aforesaid letter of intent.
The terms and expressions used in this agreement shall have
the same meanings as are assigned to them in the "Contract
Documents" referred to in the succeeding Article."
34. Similarly, Clause 2.5, 6 (e) and 8.0 of the agreement
entered into between MEA and NBCCL are worth mentioning,
which read as under:
"2.5: The Executing Agency shall invite tenders, on behalf of
the Employer, for awarding the different work packages of
the Project. For this, it shall prepare the tender documents
comprising of the technical specifications BOQ, General
Terms and Conditions, Special Conditions etc. Tender(s)
shall then be invited by the Executing Agency for an on
behalf of the Employer through open tenders or tenders
from the short listed, Pre-qualified contractors/agencies
meeting prequalification criteria for different packages. The
Executing Agency, on behalf of the Employer, shall
accordingly award the work/packages to the technically
qualified lowest bidder.
6 (e):- Service Tax, if applicable, shall be reimbursed to the
Executing Agency Any other tax levied by Government after
singing this agreement is to be paid extra.
8.0 TAXES AND DUTIES:-
All statutory taxes/levies, duties, cess, entry tax or any kind
of imposition(s) whatsoever imposed/charged by any
Government (Indian Central/State) and/or Government of
Maldives and/or any other local bodies/authorities on
"Executing Agency" and for its designated Contractor(s)/Sub-
Contractor(s) or suppliers in respect of execution of "Project
and Service Tax on Consultancy Fee of Executing Agency"
(including any variation thereof) shall be reimbursed to
"Executing Agency".
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35. Clause 2.5 of this contract authorizes respondent No.2 to
invite tenders on behalf of employer (GoI) for the purpose of
execution of the work at Addu. In furtherance of this enabling
provision, respondent No.2 entered into contract with the
petitioner and in turn, received 'works contract' services from the
petitioner.
36. It is also not in dispute between the parties that object for
bringing CGST Act and IGST Act into statute book is to make
provision for levy and collection of tax of intra-state supply of
goods and services or both and for inter-state supply of both
respectively.
37. Undisputedly, the petitioner was 're-registered' at Maldives
under provisions of Maldivian laws. The petitioner engaged a
sizable number of persons to execute the work and also
established a site office. Similarly, respondent No.2 in order to
supervise the work and get it executed through petitioner,
established its office and both engaged a sizable number of
persons.
38. It is equally admitted that the location of registered office of
petitioner and respondent No.2 are in India and all the contracts
mentioned hereinabove were entered into between the parties
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within the territory of India. The payment was required to be
made in Indian Rupees. These are the only events which have
taken place within the territory of India. The other things i.e.,
're-registration' of the petitioner at Maldives, establishment of site
office/establishment by the petitioner and respondent No.2 at
Addu city of Maldives and the construction of ISLES pursuant to
works contract services had taken place within the territory of
Maldives. In this backdrop, the interesting conundrum is
whether the Advance Ruling Authority and Appellate Authority
were justified in giving a ruling against the petitioner.
39. As noticed above, the parties are at loggerheads on the
question whether the establishment/site office maintained by the
petitioner and respondent No.2 fall within the ambit of Section 2
(7) 'fixed establishment' of the IGST Act. The parties have also
taken diametrically opposite stands on the question relating to
'location of recipient of services' and 'location of supplies or
services'.
40. These aspects deserve serious consideration. However,
before dealing with the statutory provisions, we deem it proper to
briefly state reasons assigned by learned Appellate Authority in
OIA dated 16.07.2022 (Annexure P-1) for ruling against the
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petitioner. The contention of the petitioner was not accepted
because (i) as per Clause 3.6 of the agreement, the petitioner will
receive consideration from respondent No.2 in 'Indian Rupees'.
(ii) Sri Avantika Contractors (I) Limited was registered under laws
and regulations of Maldives. (iii) NBCCL was engaged under the
aegis of the Ministry of Urban Development as the 'Executing
Agency' and its office was located at New Delhi. (iv) From where
'individual goods and services' involved in the works contract are
supplied and from where services are received is immaterial in
determining the location of recipient and supplier. (v) The
services (works contract services) have to be looked in a holistic
manner and the promise to deliver has been made by M/s. Sri
Avanthika Contractors (I) Limited which will be held responsible
for the non-performance of the agreement. (vi) In the instant
case, the supply agreement to perform is being made from the
place of business for which registration has been obtained at
Hyderabad. Thus, Hyderabad will be the location for the supplier
of services. (vii) As per definition of 'person', 'company' and
'foreign company', M/s Avanthika Contractors (I) Limited, the
petitioner and re-registered company at Maldives are separate
legal 'persons' and thus, are separate legal entities. (viii) The
registered place of business of M/s. Sri Avanthika Contractors (I)
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Limited, Maldives cannot be considered as 'fixed establishment'
of the petitioner. (ix) The 'location of the supplier' is the registered
place of business of the applicant i.e., Hyderabad. (x) NBCCL is
the recipient of services located at New Delhi. Thus, New Delhi
will be the 'location of the recipient of services'. Since the
location of the recipient of services and location of supplier of
services are located in India and services are directly in relation
to contract of immovable property Section 12 (3) (a) of the IGST
Act would apply. Since locations of both are held to be in India,
the questions raised by the petitioner were answered against
him.
Fixed Establishment/Separate Legal Entity:
41. The petitioner and respondent No.2 have admittedly opened
their establishments to execute and oversee the work at
Maldives. The construction activity of ISLES admittedly took
several years. During this period, a sizeable number of persons
were engaged by the petitioner and respondent No.2. In this
backdrop, the question is whether such establishments of the
petitioner and respondent No.2 can be treated to be 'fixed
establishment' under Section 2 (7) of the IGST Act. The said
provision reads as under:
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"2(7) "fixed establishment" means a place (other than the
registered place of business) which is characterized by a
sufficient degree of permanence and suitable structure in
terms of human and technical resources to supply services or
to receive and use services for its own needs."
(Emphasis Supplied)
42. A bare perusal of this provision makes it clear that the
necessary ingredients to bring the 'establishment' within the
definition of 'fixed establishment' are existence of (i)
establishment with sufficient degree of permanence, (ii) suitable
structure in terms of human and technical resources to receive
or supply services and (iii) such establishments must be a place
other than their registered place of business. In our considered
opinion, the expression 'registered place' means registration
under Indian laws. The registration under Maldivian law is not
covered under Section 2 (7). The necessary ingredients to treat
the establishment of the petitioner and respondent No.2 are
available which brings it within the definition of 'fixed
establishment' because there existed sufficient degree of
permanence of such establishments which were used for several
years for construction of huge building of ISLES. The letter of
OBC dated 27.12.2017 makes it clear that suitable
structure/office existed in terms of human and technical
resources to supply services or receive the same. Sizable number
of human and technical resources were employed at Addu for
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completing the task. The establishments are situate at Addu
which is other than the place of registration where business of
the petitioner and respondent No.2 were carried on.
43. We are unable to accept the line of argument of learned
counsel for the Revenue that since the petitioner itself got
registered under Maldivian law, the 'fixed establishment' has to
be at a place other than the 'registered place'. At the cost of
repetition, the words 'registered place' mentioned under
Section 2 (7) of the IGST Act does not mean 're-registration'
under foreign law of different jurisdiction.
44. Apart from this, the nature of 're-registration' of the
petitioner needs to be looked into. The relevant portion of the
said Re-registration Certificate reads as under:
" Certificate of Re-registration
THEREBY certify that SRI AVANTIKA CONTRACTORS
(I) LIMITED (610B, Nilgiri Block, Aditya Enclave, 6th Floor,
Hyderabad. Ameerpet 500038, India) having the Registry
Number 045200AP2005PLC46422 and registered in India, is
on this day re-registered in the name SRI AVANTIKA
CONTRACTORS (I) LIMITED, in the Republic of Maldives
under the Companies Act of the Republic of Maldives (Law
No.: 10/96) To construct a Police Academy/Training Facility
in Addu City (Hithadhoo).
Given under my hand and seal at Male'. Republic of
Maldives on this 22nd day of February 2017"
(Emphasis Supplied)
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45. The aforesaid re-registration was a requirement of
Companies Act of Republic of Maldives. Section 94 (a) reads
thus:
"Companies registered outside the Republic of Maldives shall
before commencing any business in Maldives, obtain the
necessary permits under the Laws and Regulation of the
Republic of Maldives and shall submit to the Registrar, the
following documents to register the company in the
Ministry of Trade and Industries as a foreign company doing
business in the Maldives".
(Emphasis Supplied)
46. A careful reading of Section 94 (a) aforesaid leaves no room
for any doubt that an existing company registered outside
Maldives needs to get itself 're-registered' before commencing any
business in Maldives. The aforesaid Certificate of Re-registration
was obtained by the petitioner as per the requirement of
Section 94 (a). It is clear like noon day that same company
registered outside Maldives (in India) got re-registered. Thus, it
is difficult to hold that merely because petitioner got Certificate of
Re-registration under the Maldivian law, the Maldivian entity
became a separate legal entity or person.
47. We say so for yet another reason. If this finding given in
OIA is accepted that the petitioner and re-registered Maldivian
entity are two separate legal entities, it will be difficult to
understand under which authority/contract the said
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independent legal entity of Maldives was permitted to execute the
work. Admittedly, no contract is entered into between
respondent Nos.1 and 2 with the re-registered entity of Maldives.
In absence thereof, it is difficult to give seal of approval to the
finding that the 'works contract services' were rendered at
Maldives by independent/separate legal entity. For these
cumulative reasons, we are constrained to hold that the
petitioner and respondent No.2 had 'fixed establishments' at
Addu city, Maldives and the petitioner was 're-registered' at Addu
which is evident from the re-registration certificate.
Scope of Judicial Review:-
48. We are in agreement with the argument of learned counsel
for the parties about the scope of interference under Article 226
of the Constitution. The parties have rightly placed reliance on
the judgment of Supreme Court in the case of Sudha Patil
(supra). As per the said judgment, the interference can be made if
(i) High Courts come to the conclusion that in arriving at the
conclusion, the authority has failed to consider some relevant
material (ii) has considered some extraneous irrelevant materials,
(iii) findings are based on no evidence and (iv) the finding is such
that no reasonable man can come to such a conclusion on the
basis of which the finding has been arrived.
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Validity of Order-in-Appeal:
49. In view of litmus test laid down by Supreme Court, we
propose to examine the reasons given by learned Appellate
Authority. In the impugned OIA dated 16.07.2022, up to para 6,
the factual background of the case and contentions of the parties
were recorded. 'Discussion and findings' begins from para No.7
onwards. It is worth remembering that learned counsel for the
petitioner and respondent No.2 strenuously contended that
Sections 8 and 13 of the IGST Act, which were governing
provisions have escaped notice of the learned Appellate
Authority.
50. We have carefully examined the 'discussion and findings'
given in para No.7 onwards. In para No.7 (1), the learned
Appellate Authority although mentioned that petitioner's main
contention was based on Section 13 (4) of the IGST Act, during
the entire analysis, he has not assigned any reason as to why
Section 13 (4) cannot be pressed into service and instead Section
12 (3) of the IGST Act will hold the field. Similarly, Section 8 and
Explanations appended to it on which reliance is placed by the
petitioner and respondent No.2 have not been considered. Thus,
one of the parameters for judicial review i.e., Authority has failed
to consider relevant material is certainly attracted. The impact of
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such non-consideration of said provisions will be discussed
hereinafter.
51. In para No.12 and 21 of impugned OIA, it was held as
under:
Para No.12 Para No.21
The discussion from where the The discussion from where the
"Individual" goods and services "individual" goods and services
involved in the works contract are involved in the works contract are
supplied from, is immaterial in received is immaterial in
determining the Supplier or the determining the Location of the
Location of the Supplier. The Recipient, instead, the place
service (works contract service) where the total service (works
has to be looked in a holistic contract service), of agreeing to
manner and the promise to deliver perform has been received will be
has been made by M/s Avantika the location of recipient of service.
Contractors (1) Limited, who will
be held responsible in the event of
any non-performance of the
agreement.
(Emphasis Supplied)
52. In para Nos.14 of same order, it is mentioned that since
supply, the agreement to perform is being made from the place of
business for which registration has been obtained i.e.,
Hyderabad, location of 'supplier of service' will be Hyderabad.
Same parameter is applied for recipient in para 22.
Para No.14 Para No.22
In this case, the supply, the In this case, the supply, the
agreement to perform is being agreement to perform is received
made from the place of business at the place of business for
for which registration has been which regisgtration has been
obtained (i.e. M/s Avantika obtained (i.e. NBCC (India)
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Contractor (I) Limited, 401/A wing Limited (with GSTIN :
D.No.6-3-352/2&3, Astral height 07AAACN3053B1Z2) at New
complex, road No.1, Banjarahilla, Delhi will be the location of the
Hyderabad 500034). Hence, this recipient of services.
location, i.e. M/s.Avantika
Contract (I) Limited with GSTIN :
36AAJCS55046C1ZG at
Hyderabad will be the location of
the Supplier of services.
(Emphasis Supplied)
53. In our judgment, the learned Appellate Authority clearly
erred in holding that from where services were supplied pursuant
to 'works contract' is immaterial. This finding runs contrary to
the statutory provisions. Section 2 (14) of the IGST Act defines
'location of recipient of services'. To support the OIA, the
emphasis was laid by Sri Dominic Fernandes on Clause (a) of
Section 2(14) to submit that registered place of business shall be
the location of recipient. We do not see any merit in the finding
given in the OIA and argument advanced to support it for the
simple reason that the language employed in Clause (a) is 'where
a supply is received at a place of business for which the
registration has been obtained'. Where supply is received is
certainly the determinative factor and learned Appellate Authority
has gone wrong in holding that the said aspect is immaterial.
The 'works contract services' were supplied and received at
Maldives and not at Hyderabad or New Delhi where registered
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office of respondent No.2 is situated. Thus, Clause (a) of Section
2 (14) has no application in the instant case. In our view, Clause
(b) of Section 2 (14) will hold the field which reads thus:
"2(14) "location of the recipient of services" means:-
(a)...
(b) where a supply is received at a place other than the place of
business for which registration has been obtained (a fixed
establishment elsewhere), the location of such fixed establishment."
(Emphasis Supplied)
54. The Clause (b) in no uncertain terms throws light that
where supply is received, is material and determinative factor to
decide 'location of recipient. The supply in the instant case is
admittedly received by the 'fixed establishment' of respondent
No.2 at Maldives. No registration of recipient under the Indian
law was separately made for respondent No.2 at Maldives. Thus,
it is crystal clear that it was received at 'fixed establishment' i.e.,
a place other than the place of business for which registration
was obtained i.e., New Delhi. Section 2(15) defines 'location of
the supplier of services'. The relevant portion reads as under:
"2(15) "location of the supplier of services" means:-
(a) where a supply is made from a place of business for
which the registration has been obtained, the location of
such place of business;
(b) where a supply is made from a place other than the place
of business for which registration has been obtained (a
fixed establishment elsewhere), the location of such
fixed establishment."
(Emphasis Supplied)
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55. A comparative reading of definitions of 'location of recipient
of services' and 'location of supplier of services' shows that only
difference between two provisions is relating to 'receiving' and
making the 'supply'. Otherwise, provisions are identically
worded. For the simple reason mentioned in preceding para
interpreting Section 2(14) of the IGST Act, we hold that the
location of the supplier is covered by Clause (b) of Section 2(15).
The supply is certainly made through 'fixed establishment' at
Maldives, which is other than the place of registration of
business of the petitioner i.e., Hyderabad. Hence, in our opinion,
the Appellate Authority erred in interpreting and understanding
the definitions of 'location of recipient and supplier'. The
erroneous reading and understanding of Section 2(7), (14) and
(15) in the OIA has 'dislocated' the location of recipient and
supplier.
56. The matter may be viewed from another angle. Section 8 of
the IGST Act deals with Intra-State Supply. The relevant portion
reads as under:
"8. Intra-State Supply:
(1) Subject to the provisions of section 10, supply of goods
where the location of the supplier and the place of supply of
goods are in the same State or same Union territory shall be
treated as intra-State supply:
Provided ...
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(2)...
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 establishment outside that State or Union
territory; or
(iii) an establishment in a State or Union territory and
any other establishment registered within that State
or Union territory,
then such establishments shall be treated as establishments
of distinct persons.
Explanation 2: A person carrying on a business through a
branch or an agency or a representational office in any
territory shall be treated as having an establishment in that
territory."
(Emphasis Supplied)
57. In Sundaram Pillai v. Pattabiraman 9, the Apex Court
summed up the objects of an Explanation to a statutory
provision as under:
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main
enactment, to clarify the same so as to make it consistent
with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of
the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change
the enactment or any part thereof but where some gap is
left which is relevant for the purpose of the Explanation, in
order to suppress the mischief and advance the object of
the Act it can help or assist the Court in interpreting the
true purport and intendment of the enactment, and
(1985) 1 SCC 591
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(e) it cannot, however, take away a statutory right with which
any person under a statute has been clothed or set at
naught the working of an Act by becoming an hindrance in
the interpretation of the same.
58. While prescribing about 'Intra-State Supply', the statute
(Explanation 1) takes care of a situation where a person has an
'establishment' in India and any other 'establishment' outside
India. Explanation 2 further provides that if the person carrying
on a business has a branch or agency or representational office
in any other territory, it shall be treated as an establishment in
that territory. This provision has totally escaped notice of
learned Advance Ruling Authority and Appellate Authority.
59. A combined reading of Explanations 1 and 2 shows that if
the petitioner had any 'establishment' in Maldives, it must be
treated to be his 'establishment' in that territory and such
establishment shall be treated as 'establishment' of distinct
person. Once such 'fixed establishment' is treated to be as
establishment of distinct person and treated as his
'representational office' in other territory, it will be clear that the
'work contract services' performed by the petitioner are relating
with the 'establishment' of the petitioner in India and his 'fixed
establishment' in Maldives is his other establishment or
'representational office'.
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60. In the peculiar facts of this case, distinct person mentioned
in Explanation-I will not mean that petitioner's Maldivian
establishment is a separate and independent legal entity as
projected in impugned OIA dated 16.07.2022. At best, it may be
treated as an artificial juridical person as per Section 2 (84) (n) of
the CGST Act. Similarly, the location of the petitioner's
registered office at Hyderabad or NBCCL's office at New Delhi will
not be the decisive factor. If the aforesaid Explanations to
Section 8 of the IGST Act are read conjointly with Section 2
(14)(b) and 2 (15)(b), the conclusion will be inevitable that the
'establishments' of the petitioner and respondent No.2 were 'fixed
establishments' at Maldives which were not at a place of the
registered place of business i.e., Hyderabad and New Delhi
respectively.
61. The finding given by learned Appellate authority in paras 12
and 14 of the impugned order are mutually inconsistent. On the
one hand in para 12, he opined that where the services were
supplied is immaterial and on the other hand in para 14, it is
held that the supply and the agreement to perform is being made
from the place of business i.e., Hyderabad which became decisive
factor for him. We are unable to countenance the said finding
which runs contrary to the statutory provision.
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62. The operative reason for ruling against the petitioner
appears to be based on Section 12(3) (a) of the IGST Act and the
proviso appended to sub-section (3). The relevant portion reads
thus:
"12. Place of supply of services where location of supplier
and recipient is in India.
(1) The provisions of this section shall apply to determine the
place of supply of services where the location of supplier of
services and the location of the recipient of services is in
India.
(2) ...
(3) The place of supply of services:-
(a) directly in relation to an immovable property, including
services provided by architects, interior decorators,
surveyors, engineers and other related experts or estate
agents, any service provided by way of grant of rights to
use immovable property or for carrying out or co-
ordination of construction work; or
(b) to (d) ...
shall be the location at which the immovable property or boat
or vessel, as the case may be, is located or intended to be
located;
PROVIDED that if the location of the immovable property or
boat or vessel is located or intended to be located outside
India, the place of supply shall be the location of the
recipient.
(Emphasis Supplied)
63. The heading of Section 12 of the IGST Act suggests that the
provision was introduced in order to determine the place of
supply of services where the location of supplier and recipient is
within the territory of India. Except proviso to sub-section (3) of
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Section 12, the entire Section 12 deals with the aspect of
determination of place of supply of services where location of
both i.e., recipient and supplier is within India. The proviso to
Section 12(3) was interpreted by learned Appellate Authority in
the line of his finding that Avantika Contractors (I) Limited,
Maldives, cannot be treated as 'fixed establishment'. The
re-registered body of the petitioner at Maldives is a different legal
entity than the petitioner and Sections 2(14)(a) and (15) (a) will be
applicable for deciding the 'location of supplier and recipient'.
64. We have already disapproved the said reasoning given by
the learned Appellate Authority. Still, it is relevant to carefully
read the said proviso on which heavy reliance is placed by
learned Appellate Authority and by Sri Dominic Fernandes,
during the course of hearing. The said proviso, in no uncertain
terms, makes it clear that if location of immovable property is
outside India, the place of supply shall be the location of
recipient.
65. We will be failing in our duty if contention of the learned
Senior Standing counsel for CBIC on another aspect of proviso to
Section 12(3) of the IGST Act is not considered. Learned counsel
urged that if proviso to Section 12(3) is read in the manner
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suggested by the petitioner, there will be no difference in result of
interpretation of the proviso and two lines mentioned in the
statute before the proviso and below sub-section (3) i.e., 'shall be
the location at which immovable property or boat or vessel, as
the case may be, is located or intended to be located'. The
aforesaid proviso deals with a situation where immovable
property is outside India. In that eventuality, place of supply
shall be the location of the recipient.
66. The purpose of proviso is considered by the Supreme Court
in several matters (see Sundaram Pillai (supra), Swadeshi
Match AB v. Securities and Exchange Board of India 10 and
Southern Petrochemical Industries Co. Ltd. v. Electricity
Inspector & ETIO 11. (See also statutory principles of
interpretation by Justice G.P. Singh 12th edition page 208-209).
As per these judgments, by and large, a proviso serves following
four different purposes:
(i) Qualifying or excepting certain provisions from the
main enactment;
(ii) It may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make
the enactment workable;
(iii) It may be so embedded in the Act itself as to become
an integral part of the enactment and thus acquire
(2004) 11 SCC 641
(2007) 5 SCC 447
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the tenor and colour of the substantive enactment
itself; and
(iv) It may be used merely to act as an optional addenda
to the enactment with the sole object of explaining the
real intendment of the statutory provision.
The aforesaid summary cannot however be taken as exhaustive
and ultimately a proviso like any other enactment ought to be
construed upon its terms.
67. The first and second purpose mentioned above squarely
covers proviso to Section 12(3) of the IGST Act. It is
qualifying/excepting a situation from Section 12 of the IGST Act
which necessarily deals with a situation which happens within
India. Similarly, it changes the concept of intendment in cases
where location of immovable property is outside India. Thus, we
are of the opinion that even as per the aforesaid proviso, the
location of recipient will be in Maldives. The proviso was inserted
with above mentioned purpose and its literal interpretation does
not make it redundant or otiose.
68. In the peculiar factual backdrop of this case, admittedly the
location of immovable property i.e., ISLES is located in
Maldives/outside India. Hence, the place of supply shall
determine the 'location of recipient'. As analysed above, the place
of supply of services is at Addu, Maldives. The 'location of
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recipient' is already interpreted by us by holding that as per
Section 2(14)(b), it will be the 'fixed establishment' of respondent
No.2 which will be the location of recipient. Thus, even as per
the aforesaid proviso to Section 12(3), we are unable to give our
stamp of approval to the OIA passed by the Appellate Authority.
69. Section 13 of the IGST Act deals with place of supply of
services where location of supply and recipient is outside India.
The relevant portion reads as under:
"13. Place of supply of services where location of supplier
or location of recipient is outside India:
(1) The provisions of this section shall apply to determine
the place of supply of services where the location of the
supplier of services or the location of the recipient of services
is outside India.
(2) ...
(3) The place of supply of the following services shall be the
location where the services are actually performed, namely:--
(a) ...
(b) ...
(4) The place of supply of services supplied directly in
relation to an immovable property, including services
supplied in this regard by experts and estate agents, supply
of accommodation by a hotel, inn, guest house, club or
campsite, by whatever name called, grant of rights to use
immovable property, services for carrying out or co-
ordination of construction work, including that of architects
or interior decorators, shall be the place where the
immovable property is located or intended to be located."
(Emphasis Supplied)
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70. As heading suggests, Section 13 of the IGST Act is a direct
and special provision which deals with a matter of this nature
where the place of supply of service (carrying out construction
work) and location of supplier and location of recipient is outside
the territory of India. The learned Appellate Authority although
referred about sheet anchor of argument of learned counsel for
the petitioner based on Section 13 of the IGST Act in para 7(1) of
impugned order, did not deal with it any further. A plain reading
of Section 13 (4) makes it clear like cloudless sky that the 'place
of supply' in relation to an immovable property for carrying out
construction work shall be the place where the immovable
property is located. Section 13 is clear and unambiguous and
hence must be given effect to irrespective of its consequences. In
the peculiar facts of this case, since the supply of service and
location of recipient and supplier is outside India, the question of
levy and collection of tax in the teeth of Section 9 of the CGST Act
or Section 5 of IGST Act does not arise. The said provisions can
be pressed into service only in cases of intra-state and inter-state
supplies respectively. Hence, we are constrained to hold that the
learned Appellate Authority has taken a view which no
reasonable man well-versed with the subject can take upon
reading the relevant provisions of the Acts.
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71. So far as the argument relating to filing of 'zero rated
return' is concerned, suffice it to say that argument must fail for
twin reasons: (i) the OIA in question is not based on this reason.
As per Constitution Bench judgment of the Supreme Court in
Mohinder Singh Gill (supra), the validity of an order of statutory
authority is to be examined on the basis of reasons mentioned
therein and it cannot be supplemented by filing counter in the
Court. (ii) Filing of an incorrect return will not operate as
'estoppel' in view of the judgment of the Supreme Court in
Jayaswal Neco Ltd. (supra).
72. Another argument faintly advanced by the learned Senior
Standing counsel for CBIC was that the singular challenge in this
petition is to the OIA dated 16.07.2022 and original order of
advance ruling dated 05.08.2021 is not called in question. We do
not find any force in this contention. The order of advance ruling
stood merged in the OIA in view of 'doctrine of merger'. Thus, if
order dated 05.08.2021 (Annexure P-18) is not separately
challenged, it will not cause any dent to the relief claimed.
73. In view of foregoing analysis, we are unable to countenance
OIA dated 16.07.2022. Resultantly, the said order and as a
consequence, the merged order dated 05.08.2021 are set aside.
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The respondents shall reimburse the amount of GST, interest
and penalty (if any) deposited by the petitioner to him in respect
of construction services provided in Maldives as per contract
dated 08.07.2016 within 90 days from the date of production of
copy of this order.
74. The Writ Petition is allowed. There shall be no order as to
costs. Miscellaneous applications pending, if any, shall stand
closed.
_________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 06.08.2024
L.R. copy be marked.
B/o. TJMR
