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First we will understand the Definition of Export of Service

Export of Service

As per the Section 2(6) of IGST Act, 2017 "export of services" means the supply of any service when,

  • The supplier of service is located in India.
  • The recipient of service is located outside India.
  • The place of supply of service is outside India.
  • The payment for such service has been received by the supplier of service in convertible foreign exchange or in Indian rupee wherever permitted by RBI (Inserted by IGST Amended Act, 2018)
  • The supplier of service and the recipient of service are not merely establishments of a distinct person.
Explanation of Condition V of Section 2(6) of IGST Act, 2017

Now we moving towards the analysis of establishments of a distinct person

Explanation 1& Explanation 2 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: Where a PERSON has,

 
  • An establishment in India and any other establishment outside India.
  • An establishment in a State or Union territory and any other establishment outside that State or Union territory.
  • 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.

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.

Now understand the meaning of PERSON:

As per the Section 2(84) of CGST Act, 2017 PERSON Includes,

  • An individual.
  • A Hindu Undivided Family.
  • A firm.
  • A Limited Liability Partnership.
  • A company.
  • An association of persons or a body of individuals, whether incorporated or not, in India or outside India.
  • 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.
  • Any body corporate incorporated by or under the laws of a country outside India. (i.e. Foreign Company)
  • A co-operative society registered under any law relating to co-operative societies.
  • Society as defined under the Societies Registration Act, 1860.
  • A local authority.
  • Central Government or a State Government.
  • Trust
  • Every artificial juridical person, not falling within any of the above.

Now understand the meaning of Company & Foreign Company as per Company Act, 2013.

 

Company (Section 2(20) of Company Act, 2013)

"Company" means a company incorporated under this Act or under any previous company law.

Foreign Company (Section 2(42) of Company Act, 2013)

"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.

QUESTION

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 subsection (6) of section 2 of IGST Act, 2017.

ANALYSIS OF ISSUE

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.

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.

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.

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.

CONCLUSION

  • 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".
  • 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 fulfillment of other conditions as provided under sub-section (6) of section 2 of IGST Act, 2017.

DISCLAIMER: This is strictly my personal opinion. Above discussion cannot be considered as our professional or legal advice. Users shall consider legal provisions or take advice from consultant before taking action on it.

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