Page 138 - GSTL_2nd April 2020_Vol 35_Part 1

40 GST LAW TIMES [ Vol. 35
2020 (35) G.S.T.L. 40 (Ker.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, J.
SUTHERLAND MORTGAGE SERVICES INC.
Versus
PR. COMMR. OF CUS., CGST & C. EX.
PR. COMMR. OF CUS., CGST & C. EX., KOCHI
PR. COMMR. OF CUS., CGST & C. EX.
W.P. (C) No. 32634 of 2019(D), decided on 3-2-2020
1
Advance Ruling Authority - Jurisdiction - Place of supply - Export of
Services - Hyper technical view taken by AAR not to admit at threshold appli-
cation seeking advance ruling on subject of export of services on the ground
that it involves issue relating to place of supply not enumerated in Section
97(2) of Central Goods and Services Tax Act, 2017 - While it is true that there is
no specific mention of term ‘Place of Supply’ in any of clauses from (a) to (g)
of Section 97(2) ibid, clause (e) of said Section on ‘determination of liability to
pay tax on goods or services or both’ is wide enough to cover all aspects relat-
ing to levy of GST - Thus, any question as to whether a supply is zero-rated or
not would ultimately mean whether supply is leviable to GST or not - Making
clause (e) wider as compared to other pigeon hole clauses of Section ibid, leg-
islator’s intention is clear and tax authorities have to take correct prospective
on issues relating to export of services - In this era of globalization, foreign
investors also require certainty and precision on tax liability - In view of
above, held that AAR has jurisdiction to address aforesaid issue - Impugned
order set aside and matter transferred to AAR to admit application, hear it and
pronounce ruling under Section 98(4) ibid on merits within 3-4 months - Sec-
tion 97(2) of Central Goods and Services Tax Act, 2017 - Article 226 of Constitu-
tion of India. - In cases of this nature, entities which come with foreign investment in
India would also require certainty and precision about the tax liability so that they can
plan and decide in advance about their functioning as business entities in India so that
its efficacy is maximised so as to bring in a “win win situation” not only for such foreign
entities, who are permitted to make such investments in India, but also for the economy of
India. It is in the light of these dynamic scenario in the fast changing global economy that
the Parliament has taken a very proactive role with a very wide vision, the Parliament in
its wisdom has decided to mandate such a provision as in clause (e) of Section 97(2),
whereby the applicant is empowered to seek advance ruling even on the said larger issue
of determination of liability to pay tax on goods or services or both and in view of such a
scenario, the Advance Ruling Authority is obliged to entertain such plea and consider it
on merits and then render its opinion/answer to such a plea that may be raised and to
render its advance ruling on those aspects in accordance with the provisions contained in
the abovesaid Acts. India is at the cusp of great global changes and there cannot be any
two opinions for anyone, who cherishes the best interests for this country, that with ex-
treme hard work and industry, we have to progress economically, socially and in all
spheres of our life. It has been in the consistent policies of the various Governments, both
at the Union level and at the levels of the States concerned, that foreign investments,
apart from domestic investments, are also highly needed for our economy, subject to the
regulatory framework projected by laws. [paras 21, 22, 23, 24]

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1 On appeal from 2019 (26) G.S.T.L. 285 (A.A.R. - GST).
GST LAW TIMES  2nd April 2020  202