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Circular No. 161/17/2021-GST
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F. No. CBIC-20001/8/2021–GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
******
New Delhi, dated the 20th September, 2021
To
The Pr. Chief Commissioners / Chief Commissioners / Principal Commissioners /
Commissioners of Central Tax (All)
The Principal Directors General / Directors General (All)
Madam / Sir,
Subject: Clarification relating to export of services-condition (v) of section 2(6) of the
IGST Act 2017–reg.
Various representations have been received citing ambiguity caused in interpretation of
the Explanation 1 under section 8 of the IGST Act 2017 in relation to condition (v) of export
of services as mentioned in sub-section (6) of the section 2 of the IGST Act 2017. Doubts have
been raised whether the supply of service by a subsidiary/ sister concern/ group concern, etc.
of a foreign company in India, which is incorporated under the laws in India, to the foreign
company incorporated under laws of a country outside India, will hit by condition (v) of sub-
section (6) of section 2 of IGST Act.
2.
The matter has been examined. In view of the difficulties being faced by the trade and
industry and to ensure uniformity in the implementation of the provisions of the law across
field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central
Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”), hereby clarifies
the issue in succeeding paragraphs.
Relevant legal provisions:
3.1
The export of services has been defined in sub-section (6) of the section 2 of the IGST
Act 2017 as under:
(6) “export of services” means the supply of any service when,––
(i) the supplier of service is located in India;
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(ii) the recipient of service is located outside India;
(iii) the place of supply of service is outside India;
(iv) the payment for such service has been received by the supplier of service in
convertible foreign exchange; and
(v) the supplier of service and the recipient of service are not merely
establishments of a distinct person in accordance with Explanation 1 in section
8;
3.2
Explanation 1 of the Section 8 of the IGST Act provides for the conditions wherein
establishments of a person would be treated as establishments of distinct persons, which is
reproduced as under:
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
being a business vertical registered within that State or Union territory, then
such establishments shall be treated as establishments of distinct persons.
As per the above Explanation, an establishment of a person in India and another establishment
of the said person outside India are considered as establishments of distinct persons.
3.3
Reference is also invited to the Explanation 2 of Section 8 of IGST Act, which is
reproduced below:
“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.”
3.4
Reference is also invited to the definition of “person” as provided under CGST Act
2017, made applicable to IGST Act vide section 2(24) of IGST Act 2017. “Person” has been
defined under sub-section (84) of the section 2 of the CGST Act 2017, as under:
(84) “person” includes—
(a) an individual;
(b) a Hindu Undivided Family;
(c) a company;
(d) a firm;
(e) a Limited Liability Partnership;
(f) an association of persons or a body of individuals, whether incorporated
or not, in India or outside India;
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(g) any corporation established by or under any Central Act, State Act or
Provincial Act or a Government company as defined in clause (45) of section
2 of the Companies Act, 2013;
(h) any body corporate incorporated by or under the laws of a country
outside India;
(i) a co-operative society registered under any law relating to co-operative
societies;
(j) a local authority;
(k) Central Government or a State Government;
(l) society as defined under the Societies Registration Act, 1860;
(m) trust; and
(n) every artificial juridical person, not falling within any of the above;
3.5.
The definitions of company and foreign company have been provided under section 2
of Companies Act 2013, as under:
(20) “company” means a company incorporated under this Act or under any
previous company law;
(42) “foreign company” means any company or body corporate incorporated
outside India which—
(a) has a place of business in India whether by itself or through an agent,
physically or through electronic mode; and
(b) conducts any business activity in India in any other manner.
Analysis of the issue:
4.1
Clause (v) of sub-section (6) of section 2 of IGST Act, which defines “export of
services”, places a condition that the services provided by one establishment of a person to
another establishment of the same person, considered as establishments of distinct
persons as per Explanation 1 of section 8 of IGST Act, cannot be treated as export. In other
words, any supply of services by an establishment of a foreign company in India to any other
establishment of the said foreign company outside India will not be covered under definition
of export of services.
4.2
Further, perusal of the Explanation 2 to section 8 of the IGST Act suggests that if a
foreign company is conducting business in India through a branch or an agency or a
representational office, then the said branch or agency or representational office of the foreign
company, located in India, shall be treated as establishment of the said foreign company in
India. Similarly, if any company incorporated in India, is operating through a branch or an
agency or a representational office in any country outside India, then that branch or agency or
representational office shall be treated as the establishment of the said company in the said
country.
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4.3.
In view of the above, it can be stated that supply of services made by a branch or an
agency or representational office of a foreign company, not incorporated in India, to any
establishment of the said foreign company outside India, shall be treated as supply between
establishments of distinct persons and shall not be considered as “export of services” in view
of condition (v) of sub-section (6) of section 2 of IGST Act. Similarly, any supply of service
by a company incorporated in India to its branch or agency or representational office, located
in any other country and not incorporated under the laws of the said country, shall also be
considered as supply between establishments of distinct persons and cannot be treated as export
of services.
4.4
From the perusal of the definition of “person” under sub-section (84) of section 2 of the
CGST Act, 2017 and the definitions of “company” and “foreign company” under Section 2 of
the Companies Act, 2013, it is observed that a company incorporated in India and a foreign
company incorporated outside India, are separate “person” under the provisions of CGST Act
and accordingly, are separate legal entities. Thus, a subsidiary/ sister concern/ group concern
of any foreign company which is incorporated in India, then the said company incorporated in
India will be considered as a separate “person” under the provisions of CGST Act and
accordingly, would be considered as a separate legal entity than the foreign company.
Clarification:
5.1
In view of the above, it is clarified that a company incorporated in India and a body
corporate incorporated by or under the laws of a country outside India, which is also referred
to as foreign company under Companies Act, are separate persons under CGST Act, and thus
are separate legal entities. Accordingly, these two separate persons would not be considered as
“merely establishments of a distinct person in accordance with Explanation 1 in section 8”.
5.2
Therefore, supply of services by a subsidiary/ sister concern/ group concern, etc. of a
foreign company, which is incorporated in India under the Companies Act, 2013 (and thus
qualifies as a ‘company’ in India as per Companies Act), to the establishments of the said
foreign company located outside India (incorporated outside India), would not be barred by the
condition (v) of the sub-section (6) of the section 2 of the IGST Act 2017 for being considered
as export of services, as it would not be treated as supply between merely establishments of
distinct persons under Explanation 1 of section 8 of IGST Act 2017 . Similarly, the supply from
a company incorporated in India to its related establishments outside India, which are
incorporated under the laws outside India, would not be treated as supply to merely
establishments of distinct person under Explanation 1 of section 8 of IGST Act 2017. Such
supplies, therefore, would qualify as ‘export of services’, subject to fulfilment of other
conditions as provided under sub-section (6) of section 2 of IGST Act.
6.
It is requested that suitable trade notices may be issued to publicize the contents of this
Circular.
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7.
Difficulty, if any, in the implementation of this Circular may be brought to the notice
of the Board. Hindi version will follow.
(Sanjay Mangal)
Principal Commissioner
