In re Telecommunications Consultants India Ltd. (GST AAAR Odisha)
We notice that the Authority for Advance Ruling, Odisha, in their findings (para 5.3 of the Order) has clearly observed that Odisha Knowledge Corporation Limited (OKCL) was promoted by the Higher Technical Education Department, Govt of Odisha and was incorporated under the Companies Act, 1956, as a Public Sector Undertaking to create new paradigm in education and development through universalisation and integration of Information Technology in teaching, learning and educational management processes in particular and socio-economic transformative processes in general. OKCL can sue and be sued in its own name and capacity distinct from its owners. The Government, being the Union or State Government, on other hand, can also sue and be sued, but in the name of Union of India or the Government of a State as empowered under the Article 300 of the Constitution of India. Article 300 of the Constitution of India is applicable to Government and does not apply to OKCL. OKCL being a registered entity under the Companies Act 1956 can execute all contracts in its own name and capacity. The Union or State Government , can also execute contracts made in the exercise of the executive power of the Union or of a State, and shall be expressed to be made by the President, or by the Governor of the State under Article 299 of the Constitution of India. Article 299 of the Constitution of India does not apply to OKCL. Article 300 of the Constitution of India provides that State can sue or be sued as juristic personality in the name of Union of India and Government of a State. Therefore, OKCL is neither the State Government nor a part of the State Government of Odisha or the Central Government and therefore the supplies by the Appellant to OKCL should not be held to be a supply to Government.
FULL TEXT OF ORDER OF APPELLATE AUTHORITY OF ADVANCE RULING, ODDISHA
1. BRIEFS FACTS OF THE CASE
1.1. M/s Telecommunication Consultants India Ltd. (hereinafter referred to as the “Applicant” or ” the Appellant”) assigned with GSTIN 21AAACT0061H1Z0 having registered address at TCIL Bhawan, Greater Kailash-I, New Delhi-110048, had filed an application on 21.08.2018 under Section 97(1) of CGST Act, 2017 read with Rule 104 of CGST Rules 2017 & OGST Rules, 2017 in Form GST ARA-01 before the Authority for Advance Ruling, Odisha (herein after referred to as “AAR”) seeking an Advance Ruling on the applicability of Entry No. 72 of Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017, read with Entry No. 72 of Notification bearing SRO No. 306/2017-Finance Department, Government of Odisha to the services provided by them under the category of Information and Communication Technology)1CT @ School Project.
1.2. The Appellant is a Public Sector undertaking working under the administrative control of the Department of Telecommunications, Ministry of Communications and Information Technology, Government of India and is duly registered under the Central Goods and Service Tax Act, 2017 as well as Odisha Goods and Service Tax Act, 2017 in the State of Odisha having registration No.21AAACT0061H1ZO. The Appellant is engaged in consultancy and engineering services pertaining cellular technology, information technology and other allied areas..
1.3. The present appeal concerns, one such ICT project being implemented by the Appellant in the State of Odisha. The Odisha Madhyamik Shiksha Mission (herein after referred to as “OMSM”), Government of Odisha, has mandated the Odisha Knowledge Corporation Limited (hereinafter referred to as “OKCL”) to implement ICT project in 4000 Government schools and Government aided higher secondary schools across the State of Odisha. Accordingly, OKCL floated a tender (Tender Code No.3) on e-tendering portal of Secured e-Tendering System (SeTs).
1.4. The said tender was for Supply, Installation, Maintenance and Commissioning of Projection system, Interactive White Board, Computer Hardware, Connected Accessories, Installation of Software and other allied accessories, site preparation (i.e. vinyl flooring, furniture and fixtures, electrical fittings, power backup facilities, LAN, etc.), maintenance of equipment and provisions of computer training services for 5 years, in 4000 schools, divided in five zones on the BOOT Model basis.
1.5. The Appellant was successful bidder and was awarded the tender vide Letter of Award No .0KCUSME/47/05 DATED 02.08.2013 to execute the contract in one of the six zones. Accordingly, the Appellant entered into an agreement with OKCL on 07.10.2013.
1.6. This contract period was for five years and as per agreement the entire infrastructure (supplied & installed) will be transferred to school and mass education department at zero transfer value. The total contract value of the project was Rs.107,14,83,000/-.. The Appellant has filed an application on 21.08.2018 before the Authority for Advance Ruling of Odisha, under Section 97 of CGST Act, 2017 and OGST Act, 2017 read with Rule 104 of CGST Rules, 2017 & OGST Rules, 2017 in Form GST ARA-01 seeking an Advance Ruling on the applicability of Entry No. 72 of Notification No. 12/2017-Central Tax read with Entry No. 72 of Notification bearing SRO No. 306/2017-Finance Department, Government of Odisha to the services provided by them under the ICT @ School Project.
Entry No. 72 of Notification No. 12/2017-Central Tax being relevant is quoted below:
