BharatTaxGST

Amazon Development Centre INDIA Private Limited vs. State Of Karnataka

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WP/23458/2023HC KarnatakaGSTCNR KAHC01055593202317 September 2024Bench: S.R.KRISHNA KUMAR5 pages
For Petitioner: SRI. G. SHIVADASS, SENIOR COUNSEL APPEARING FOR SRI. RAVI RAGHAVAN AND SRI.SYED M.PEERAN, ADVOCATESFor Respondent: SRI. HEMA KUMAR, AGA

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Cause title — parties, addresses and appearances
- 1 - NC: 2024:KHC:38510 WP No. 23458 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 23458 OF 2023 (T-RES) BETWEEN: AMAZON DEVELOPMENT CENTRE INDIA PRIVATE LIMITED NO. 2870, TAURUS BAGAMANE CONSTELLATION, 4 TO 12TH FLOOR, OUTER RING ROAD, MAHADEVPURA, K R PURAM HOBLI, BANGALORE – 560 037. (REP BY SHRI ALOK SUNIL CHANDAN, SENIOR MANAGER-TAX) INCORPORATED UNDER THE COMPANIES ACT, 1956(NO. 1 OF 1956). …PETITIONER (BY SRI. G. SHIVADASS, SENIOR COUNSEL APPEARING FOR SRI. RAVI RAGHAVAN AND SRI.SYED M.PEERAN, ADVOCATES) AND: 1. STATE OF KARNATAKA THROUGH ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560 001. 2. THE COMMISSIONER OF COMMERCIAL TAXES VANIJYA THERIGE KARAYALAYA, GANDHINAGAR, BANGALORE-560 009. 3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (AUDIT)-5.9, VTK-2 B-BLOCK, 6TH FLOOR, ROOM NO 601, KORAMANGALA, BENGALURU-560 047. …RESPONDENTS (BY SRI. HEMA KUMAR, AGA) THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED SHOW CAUSE NOTICE VIDE BEARING NO. DGSTO-5/DC-5.9/ADJ-59/2023-24, FORM-GST-DRC-01 DATED 25/08/2023 ISSUED BY R3 AT ANNEXURE-A FOR THE PERIOD OCTOBER 2017 TO MARCH 2018. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2024:KHC:38510 WP No. 23458 of 2023 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

In this petition, petitioner seeks for the following reliefs:-

“ a) Issue a writ in the nature of Certiorari or any other appropriate writ order direction under Article 226 of the Constitution quashing the impugned Show Cause Notice vide bearing no. DGSTO-5/DC-59/ADJ- 59/2023-24, FORM- GST-DRC-01 dated 25.08.2023 issued by Respondent No.3 at Annexure-A for the period October 2017 to March 2018;

b) Hold that the pre-sale and post-sale services provided by the Petitioner to its Foreign Affiliates is not in the nature of intermediary' under Section 2(13) of the IGST Act and that such service qualifies as 'export of service' under Section 2(6) of the IGST Act:

c) Hold that the Petitioner is not an intermediary' in terms of Section 2(13) of the IGST Act and does not meet the requirements of an intermediary that are laid down in the CBIC Circular dated 20.09.2021;

d) Hold that in any case, the Petitioner being an SEZ Unit is not liable to discharge IGST on the services provided to Foreign Affiliates pursuant to Customer Services Agreement as it qualifies as 'export' in terms of Section 2(m) r/w Section 51 of the SEZ Act, 2005;

e) pass such further order(s) and other reliefs as the nature and circumstances of the case may require.” NC: 2024:KHC:38510

2.

Heard learned Senior counsel for the petitioner and learned AGA for the respondents and perused the material on record.

3.

The issue involved in the present petition is directly and squarely covered by the judgment of this Court in relation to the very same petitioner in M/s.Amazon Development Centre India Private Limited vs. Additional Commissioner of Central Tax & Another – W.P.No.13007/2024 Dated 17.09.2024, wherein it is held as under:-

29.

In the light of the aforesaid discussion and facts and circumstances narrated supra and the principles laid down in the aforesaid judgments, I am of the considered opinion that the petitioner is not an “intermediary” under Section 2(13) of the IGST Act in terms of the Circular dated 20.09.2021 and the Customer support services provided by the petitioner to foreign affiliates qualify as export of service under Section 2(6) of the IGST Act and consequently, the impugned orders and show cause notice deserve to be quashed.

30.

In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned Order-in-Appeal at Annexure-A dated 04.01.2024 insofar as it relates to rejection of the NC: 2024:KHC:38510 refund claim of the petitioner pertaining to the issue of intermediary / intermediary services is hereby quashed. (iii) The impugned show cause notice at Annexure-M dated 01.09.2022 issued by the respondents seeking recovery of refund sanctioned in relation to customer support services in favour of the petitioner is hereby quashed. (iv) Liberty is reserved in favour of the petitioner to contest the remaining issues before the GST Appellate Tribunal as and when the same is constituted by the Central Government.

4.

In view of the aforesaid facts and circumstances, the present petition also deserves to be allowed and disposed of in terms of the aforesaid judgment.

5.

In the result, I pass the following:- ORDER (i) Petition is hereby partly allowed. (ii) The impugned show cause notice at Annexure-A dated 25.08.2023 issued by the respondents to the extent of proposing to demand GST on the export of customer support services provided by the petitioner is hereby quashed. (iii) Liberty is reserved in favour of the petitioner to contest the remaining issues by filing appropriate reply, pleadings, documents etc.,. before the Adjudicating Authority, which shall NC: 2024:KHC:38510 consider the same and provide sufficient and reasonable opportunity to the petitioner and proceed further in accordance with law. (S.R.KRISHNA KUMAR) JUDGE

SV/SRL

Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.