Date – 17 August 2023

Parties: M/S Cube Highways and Transportation Assets Advisor Private Limited Vs. Assistant Commissioner CGST Division & Ors. 

Facts – 

• The Petitioner, M/S Cube Highways and Transportation Assets Advisor Private Limited is engaged in providing investment advisory services related to non-resident group companies in India's transportation sector.
• The petitioner had entered into a Support Service Agreement on 30.05.2015 with I Squared. In terms of the Agreement, the petitioner agreed to provide Advisory Support Services as mentioned in the Agreement, the parties agreed that the petitioner would be remunerated at an arm’s length price to be determined on cost-plus markup basis.
• The petitioner filed its applications for refund of unutilized ITC for the financial years 2018-19 to 2020-21, which were rejected. Being aggrieved the petitioner filed the appeal.

Issue – 

• Whether the services provided by the petitioner to I Squared qualify as 'export of services' or as an 'Intermediary'?

Order – 

• The Divisional Bench of Hon’ble High Court observed that It is apparent from Clause 2, that petitioner at all time was required to act as an independent service provider and the Agreement with I Squared was on principal to principal basis. It was expressly specified in the said Clause that the petitioner is not intended to be an agent or partner of I Squared. 
• Where a party renders advisory or consultancy services on its own account and does not merely arrange it from another supplier or facilitate such supply, there are only two entities, namely, service provider and the service recipient. In such a case, rendering of consultancy services cannot be considered as ‘Intermediary Services’ or services as an ‘Intermediary’.
• There is no allegation that the petitioner has rendered any service to an individual. Plainly, the Adjudicating Authority has misunderstood the nature of services covered under Sub-section (3)(b) of Section 13 of the IGST Act. These are essentially in the nature of personal services which require the physical presence of the service recipient. 
• The services rendered by the petitioner cannot be covered under Sub-section (4) of Section 13 of the IGST Act. As is apparent from the plain language of Sub-section (4) of Section 13 of the IGST Act, the supply of services contemplated under the said Clause are those that are supplied directly in relation to an immovable property. 
• Hence the Adjudicating Authority is directed to process the petitioner’s claim for refund as expeditiously as possible.