Case Law Details
Genpact India Pvt. Ltd. Vs Union of India and others (Punjab & Haryana High Court)
Punjab & Haryana High Court held that there is no change in the legal position i.e. the scope and ambit of intermediary services under the service tax regime vis-a-vis the GST regime hence Master Services Sub-contracting agreement which continues to operate since 2013 cannot be treated differently at different period.
Facts- Challenge in the instant petition is to the order dated 15.02.2021 passed by the Additional Commissioner CGST (Appeals) Gurugram wherein it has been held that the services provided by the petitioner are in the nature of “Intermediary Services” as per Section 2 (13) of the IGST Act and do not qualify as “export of services” in terms of Section 2(6) of the Act and thereby rejecting the refund claim of un-utilized Input Tax Credit (ITC) used in making zero rated supplies of services without payment of Integrated Goods and Service Tax.
Conclusion- A bare perusal of the recitals and relevant clauses of the MSA reproduced hereinabove do not in any manner indicate that petitioner is acting as an “intermediary” so as to fall within the scope and ambit of the definition of “intermediary” under Section 2 (13) of the IGST Act. Such clauses cannot also be interpreted to conclude that the petitioner has facilitated the services. The said clauses are in relation to the modalities of how the actual work would be carried out and do not in any manner establish that the petitioner was required to arrange/facilitate a 3rd party to render the main service which has actually been rendered by the petitioner.
Accordingly, in the light of such position wherein there is no change in the legal position i.e. with regard to the scope and ambit of “intermediary” services under the service tax regime vis-a-vis the GST regime and there being no change of facts as it is the MSA of 2013 (Annexure P-1) which continues to operate, the department cannot take a different view for different periods.
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