In re Tokyo Electric Power Company (GST AAR Odisha)
We see that the applicant has entered into an agreement with M/s OPTCL, Bhubaneswar, Odisha to provide consulting services. The scope of the services is Technology transfer for the outdoor GIS O&M and GIS operation Manual preparation. The applicant would carry out the services through its expert belonging/sub-station Engineer. At the time of PH, the applicant was asked whether the applicant holds any office India, in response, it was stated that the applicant does not hold any office in India whether owned or rented. But We find from the contract document that OPTCL has provided an office to the consultant and the office operation and maintenance charge etc also to be borne by OPTCL.
Location of supplier is usually where a supply is made from, a place mentioned as a principal place of business on the GST registration certificate. But in the instant case, the place of supply and the location of supplier is at the project site which is different from the place of business . We see that it is a long-term contract spanning over 46 months followed by 6 months of defects liability period. The applicant is responsible for providing and transferring the technical knowledge in relation to the outdoor GIS equipment to OPTCL Engineer and staffs through the actual consulting activities during the design stage and implementation stage of the project. In order to carry out the aforementioned tasks, It would depute the support staff and expert belonging at the project site. OPTCL shall provide them access to the project site in respect of which access is required for the performance of the services . The expert so deputed to the project site by the applicant is to be paid at an agreed rate for the aforementioned tasks.
It is evident from the above discussion that the expert belonging maintains suitable structures in terms of human and technical resources at the sites of OPTCL. It ensures provision of supply of consulting services for the contract period, indicating sufficient degree of permanence to the human and technical resources employed at the sites. The applicant through its expert belonging, therefore, supplies the service at the sites from fixed establishments as defined under section 2 (7) of the IGST Act. The location of the supplier should, therefore, be in India in terms of section 2 (15)of the IGST Act. Therefore, We donot agree with the contention of the applicant that the services supplied to OPTCL would be covered under the ambit of Entry No. 1 of Notification No. 10/2017- Integrated Tax (Rate) dated 28th June, 2017 and shall be liable to tax under RCM..
Supply of consulting services through sub-station Engineer/ expert of the applicant to OPTCL is not, therefore import of service within the meaning of section 2 (11) of the IGST Act. The Engineer/expert belonging to the applicant should be treated as a supplier located in India, and made liable to pay GST, the place of supply being determined in terms of section 12 (2) (a) of the IGST Act. Since, applicant is liable for payment of GST, we hold that he is required to be registered under Odisha Goods and Services Act, 2017 and Central Goods and Services Act, 2017 for the consultancy services provided to Odisha Power Transmission Corporation Limited .
Supply of service to OPTCL is not import of service in terms section 2 (11) of the IGST Act . The recipient is not, therefore, liable to pay GST on reverse charge basis in terms of Notification No. 10/2017 – Integrated Tax (Rate) dated 28.06.2017. The applicant, being the supplier of service in India, is liable to pay tax and therefore, required to take GST registration under Odisha Goods and Services Act, 2017 and Central Goods and Services Act, 2017 for the consultancy services provided to Odisha Power Transmission Corporation Limited .
AAAR Order: GST under RCM not applicable on services rendered in India by Non-Resident Company as same is not import
FULL TEXT OF ORDER OF AUTHORITY OF ADVANCE RULING, ODDISHA
Subject: Tokyo Electric Power Company, Holding Inc., (hereinafter referred as the “Applicant”), a Japan based Company having a GSTIN : 212000000193ARK, filed an application for Advance Ruling under Section 97 of CGST Act, 2017 and Section 97 of the OGST Act, 2017 in FORM GST ARA-01 discharging the fee of Rs. 5,000/- each under the CGST Act and the SGST Act.
1.0 The Applicant under his application dated 03.07.2020 ( received in this office on 10.08.2020) sought for a ruling as to Whether the Applicant is required to be registered under Odisha Goods and Services Act, 2017 and Central Goods and Services Act, 2017 for the consultancy services provided to Odisha Power Transmission Corporation Limited?
1.1 At the outset, we would like to make it clear that the provisions of both the CGST Act and the OGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the OGST Act.
2.0 The applicant, while filing the application, submitted the Statement containing the Applicant’s interpretation of law and/or facts, in respect of the question on which advance ruling is sought. It was submitted that M/s Tokyo Electric Power Company Service Limited (“TEPSCO”), a Japan based company, in association with Tokyo Electric Power Company, Holding Inc., (hereinafter referred as “Applicant”), a Japan based Company (collectively referred to as “Consultants”) has entered into an agreement dated 13 April 2018 (“Agreement”) with an Indian entity Odisha Power Transmission Corporation Limited (hereinafter referred as “OPTCL”), whereby consultants have agreed to provide consultancy services to M/s Odisha Transmission System Improvement Project (“Project”), Odisha, India.
2.1 It was also submitted that the Applicant will provide and transfer the technical knowledge in
relation to the outdoor GIS equipment to OPTCL’s engineer and staffs through the actual consulting activities during the design stage and implementation stage of the Project. The Applicant would early out/provide consultancy services by the expert belonging. As per the time schedule mentioned in the Agreement, his stay in India would be as follows:
