@ Poornima

First understand the example I am putting is that A sells goods to B ex factory. B transports it outside India. Both A & B are located in India. Here B is the exporter where he transports it outside India. But according to you since the delivery is continuing till consumption POS of A will also be outside India. This is absurd. This is what were you saying it i the context of Maharashtra.

Now coming to Kerala High Court Ruling both in KVAT and GST era. Both are against the assessee and have adjudged the transactions as intra state. Please see.

@ Veerendar I would suggest read the case laws and see how laws are interpreted.

Dear CA Altarmush.
If it is B2B transaction then also the POS remain Delhi ?????
Even though it's B2C supply, the Rule 46(6) need to be satisfy. , as soon as state code & address is mentioned in Tax Invoice , the POS going to be Maharashtra.

Moreover in this regard the Circular 90/09/2019 Also Issued , stating Compliance of rule 46(n) of the CGST Rules, 2017 while issuing invoices in
case of inter- State supply – Reg.
A registered person supplying taxable goods or services or both is required to issue a Tax Invoice as per the provisions contained in section 31 of the CGST Act, Rule 46 of the Central Goods and Services Tax Rules, 2017 (CGST Rules for short) specifies the particulars which are required to be mentioned in a Tax Invoice.

Will Eway bill Accept the CGST/SGST tax for above address being provided thereon ???? Answer is Big Noooo

So IGST is applicable

So It's IGST supply

Pankaj Ji even then it will be Delhi.
POS provisions for goods are not the same for service. Like for service it specifically says for many services if registered then registered office if not registered then something else as per provisions.
For goods the law is homogeneous for both registered or unregistered.
But practically in most cases it doesn't happen since ITC will be lost. Contracts are made so as to show passing of delivery to the state of the recipient.
The case law although misquoted by Miss Poornima is evidence of this fact.
As far as quoting in invoice. The billing address can be different from POS. The return mechanism also allows that.
As far ewaybill is concerned in the case of querist the e way bill will be made by recipient.
The supplier is least concerned wherever he takes it. Therefore supplier will charge CGST & SGST being intra state.
You can refer the case law of Lalitha Muraleedharan Ker HC

Lalitha Muraleedharan Vs. Range Forest Officer:

"The contention of respondents that supply of goods is completed at supplier’s location and subject sets is an intra state transaction is unsustainable".

This means it is not an intra-state transaction (but inter-state transaction)

Further, let's consider a hypothetical situation:

1) A registered buyer in Maharashtra buys goods from a registered seller in Delhi (same as the query for ease of understanding) and the goods are transported from the seller to the buyer thru a transporter. In this case, IGST would be levied. All agree I think

2) Now, the same buyer  comes to Delhi to collect the good (for consumption in Maharashtra) and agrees to carry the good with him just to save the cost of transportation. In other words, he acts as a transporter in this case. On what basis can we say that suddenly this transactions becomes an intra-state supply!!!! All the buyer has done is to behave like a transporter. Can this make such a transaction intra-state sale. If so, what will happen to the ITC for the registered buyer. He will not be able to claim ITC if CGST/SGST is charged (assuming that the buyer is not registered in Delhi in this case)

Also, in section 10(1), what is significance of the words "whether by the supplier or the RECIPIENT or by any other person"? The supply can involve movement of goods by the recipient too. What if the recipient hires a transporter to collect goods from seller and deliver to the recipient? 

When judicial ruling, advance ruling and even the department's FAQ are favorable to the taxpayer, why do we have to stick to something that is not beneficial for the taxpayer. That too when there are instances in support of such claim!!

Cite the writ petition.
As I have searched both the case laws of kvat & gst are against the apellant as far as POS is concerned.

Dear CA Altarmush
EWAY BILL NOT ACCEPT THE CGST/SGST WHEN STATE CODE IS PROVIDED MAHARASHTRA.

So when you know that it doesn't matter whether it is B2B or B2C supply , then you must be aware that the in tax invoice it's mandatory to mention State Code (As per Circular penalty is livable if state code & address is not mentioned )

So when state code is 27 "Maharashtra" , the IGST will Attracts.

POS provision of Section 10(1) IGST is in respect of Supply Goods only .

So you do really think that Section 10(1) & Section 31 R/w rule 46 is nothing to do in this regard.
There is clear cut law in this regard & there is no ambiguity that one has a difficulty in interpreting it .

@ Pankaj ji
Refer the judicial decision of Kerela High Court. It itself is saying that the supply is in the same state.
For KVAT there was a unfavorable judgement.
In GST also same party approached. In this also the court admitted that the supply is in the same state but due to supply being for sez it will be zero rated.
Legal position will not get changed due to errors or non availability in portal

@ poornima
I think you haven't read the whole case and only quoting it by reading the summary.
The case law during kvat was outright against the assessee.
In GST also the court accepted that sale is happening within state but because it is supply to sez it will be treated as zero rated. So the decision was more regarding sez. But in that also court admitted that sale is happening within state.
Please read the full case law before quoting it

I think you are not in a position to know what I've read or what I haven't!

I don't know on what basis you are interpreting the judgment.

I've already made it easy by giving the texts from the order which contain the word UNSUSTAINABLE. Also read about movement of goods in the order.

Reading the entire order would help in better interpretation I think.

Well I have read both the judgements, one of kvat and other of GST
Kvat was against the assessee
In GST the court said the supply is actually within Kerala but because it is a supply to sez therefore it is a zero rated supply and because it is a zero rated supply it will be inter state.
So in the judgement it was because of sez it was declared inter state and not due to delivery place. This was due to the fact that a specific provision overrules a general provision.
So in case it was a supply to non sez it would have been intra state.
Just because at the end of the judgement it is written inter state doesn't means it becomes inter state for everyone and every case.
First try and read the full judgement and then discuss.

Same to you for the last sentence!

And if, even after reading the orders, if you still interpret this way, I've one last option to share the summary of judgment by some law firm I think.

Here is the link:

https://www.google.com/url?sa=t&source=web&rct=j&url=https://elplaw.in/wp-content/uploads/2020/02/ELP-Tax-update.pdf&ved=2ahUKEwiAhNPOxrjxAhUOzTgGHYgECF0QFjAIegQICxAC&usg=AOvVaw0lCwPJMQxo52NprlCVr_As

The document is lengthy. Searching by the name of the petitioner is an easy option.

This is just the summary and that too is written wrongly.
Read para 10 and 11 of the judgement if you have the full judgement of the divisional bench.
There the judges said that it is intra state but because it is sez it will be inter state (specific provision)
My view and the court's view is the same.
If you don't have the full judgement then ask.

CA Altarmush
I cannot understand whether to reply to simple query needs to qoute so many judgement when LAW is very much clear in this regard.
In simple language GST is consumption based tax & in this case the movement caused by recipient of goods & delivery terminates at Maharashtra.

The same has been prescribed in FAQ available on cbic site :
Q6. What would be the place of supply wherein the supplier hands over the goods to recipient in his state & further movement is caused by the recipient ?
Ans : The movement can be caused by supplier, recipient or any other person. where the supply involves movement of goods ,the place of supply shall be THE LOCATION WHERE THE MOVEMENT OF GOODS TERMINATES FOR THE DELIVERY TO RECIPIENT.

It is imperative to note that Section 10(1)(a) of IGST Act has categorically deploy 3 phrase, Viz - "By Supplier", "Recipient" and "any other person" while discussing the aspect of movement of goods being caused. Use of the phrase "by the recipient" in section 10(1)(a) clearly indicates that law makers have an intent that even if the goods are moved by the recipient to his place, the place of supply of goods will be the place where such movement is terminated i,e. place of recipient, even though the transfer of title in goods may have been completed in the supplier's state itself.

Even in the pre- GST era, the honourable Supreme Court in Tata Iron and Steel Co. Ltd. vs. S. R. Sarkar has held that in case of inter state sale, transfer of property may happen in either of the states.

If I go by your reply , then in all the cases of ex-works sale, the transaction will classify as intra-state Supply, despite goods being consumed in the other state, flouting the theme of GST, being a destination based consumption tax.

Else if you even not satisfied then kindly reply to my Question.

What about Eway Bill in above case ??? whether it will accept the local tax ???

Note : Eway portal also does accordingly as LAW

Karan Batra from New Delhi purchases a Laptop from an Electronic store in UP. Karan takes the delivery of the laptop in UP itself and brings it to New Delhi in his own car.
In this case, the place of supply would be considered to be UP as the laptop was in UP at the time of delivery of the laptop.

I am agree with Altarmush Ji , place of supply will be Delhi not Mumbai.

Apply Common sense there also.

https://www.charteredclub.com/gst-place-of-supply/amp/

B2c supply of goods value not exceed above Rs.250000/= May prove payment of gst by him without digital system/ banking details.

Pankaj Rawat

You must know this better than most that in GST we know many instances where the law book is something else and portal is something else.

Can you rectify the return? No. But law provides.

So you cannot say portal is supreme.

Second understand the transaction. Where the supplier gives all rights and is freed from his liability delivery terminates. It is no way for the supplier where the goods are going to be consumed.

Suppose the recipient says that it is going to Maharashtra but diverts it mid way.

No one answered the question to my example what if recipient took it outside India directly. Recipient becomes exporter for the second transaction but what about the first transaction? It is a domestic supply but according to you since the recipient is transporting outside India the POS will become outside India? No it won't.

There are three concepts in all transactions which you have failed to understand. Removal, Transportation and delivery and all three have different meaning but you are taking them as one.

And yes all counter sales and ex factory sales where liability of supplier has ceased at that point only that will be intra state supply.

As far as e-way bill is concerned. The invoice of the supplier will have POS as delhi only (query concerned). After that the recipient will have to bring the goods through delivery challan because invoice will have billing address as Maharashtra but not POS nor delivery. It will be clearly written DELIVERED EX-FACTORY. Now e-way bill portal allows or not is least important while interpreting law.

And what if a tourist comes to Delhi from any state. Shops in stores and malls. And you expect the stores to charge igst? Whether it is b2c or b2b law doesn't change. Because nature of sale doesn't change.

As far as quoting judgements are concerned do you think the judges were idiots to entertain these cases. I don't know about the level of knowledge you have but High Courts only entertain cases which have a substantive question of law. Tribunal is the last fact finding authority.

So yes quoting case laws are important. And the Kerala HC clearly said that the supply is within state.

Simple language is not used to read the law. GST is a destination based tax, I agree but in this case delivery is getting terminated there and then only. It is intra state. GST law also provided for seamless flow of ITC, is it happening? So simple language and theme is not used for interpretation of law.

Take the example of intermediary. The theme of GST is destination based still it is not followed in this case. There was dissent between judges but a senior bench now has cleared that it is totally constitutional and valid. So theme is not followed where law says otherwise.

And lastly you give to much importance to portals and procedures above the law. FAQs and AAR have no legal authority on the public at large and neither the circulars do. So know what is important in interpretation of law and what is not. Rest you can do what you want.

My opinion remains the same.