Delhi High Court: A batch of petitions was filed by Uber India Systems Private Limited (Petitioner 1), Pragatisheel Auto Rickshaw Driver Union (Petitioner 2’) and IBIBO Group Private Limited along with Make My Trip (India) Private Limited (Petitioner 3) challenging the Clauses (iii) and (iv) of notification relating to Central Tax (Rate) and Clauses 1(i) and 2(i) of relating to Central Tax (Rate) dated 18-11-2021 (impugned Notifications) issued by Union of India (respondent), as ultra vires to the Constitution and Section 9(5) and 11 of Central Goods and Service Tax Act, 2017 (CGST Act). A division bench of Manmohan and Manmeet Pritam Singh Arora, JJ., held that the impugned clauses are not violative of Articles 14, 19(1)(g), and 21 of the Constitution as petitioners 1, 2, and 3 have failed to prove that they are similarly placed with the individual suppliers to whom the exemption have already been granted, this Court is of the opinion that the Respondents are well within their purview to deny the exemption to the ECOs like the Petitioner 1 and 3 in view of the impugned Notifications.
The State issued a notification providing the rate of tax on the supply of services. Another notification relating to Central Tax (Rate) dated 28-06-2017 (‘the parent notification’), was also issued by the Respondents which provided for unconditional exemption from payment of Goods and Service Tax (‘GST’) in cases of (i) supply of services by auto rickshaws (ii) transportation of passengers by stage carriage other than air-conditioned stage carriage. The said exemption of tax on the ‘fare’ was available to the individual autorickshaw driver, bus operator and the ECO irrespective of the mode of booking availed by the consumer, i.e., online/offline or offline agents.
The Respondents, then, issued the impugned notification amending the parent Notification and thereby withdrawing the exemption to the Electronic Commerce Operators (‘ECOs’) granted vide the parent Notification for the services. Thus, with effect from 01-01-2022, with respect to a booking made by a consumer through the electronic platform of an ECO for an auto-rickshaw ride or a bus ride, the ‘fare’ has become exigible to tax.
Grounds for Challenge
The petitioner 1 and 2 have challenged the impugned notifications on four main grounds, which are as under:
(a) Failure to satisfy the test of reasonable classification under Article 14 of the Constitution as there is the differential treatment between auto rickshaw drivers providing services through petitioner 1 and street hailing auto rickshaw drivers; it suffers from palpable arbitrariness and not in conformity with the doctrine of the level playing field;
(b) Against public interest and impact the livelihood of the auto-rickshaw drivers providing services through ECOs and freedom of choice to the consumers/riders (‘consumers’), thereby violating Articles 19(1)(g) and 21 of the Constitution;
(c) Value of conveniences offered by ECOs, i.e., Petitioner 1 is charged separately and liable to GST and there are no other instances of transportations supplied through ECOs being taxed differently such as that levied through the impugned Notifications, therefore, the same are liable to be struck down.
(d) Petitioner 3 has challenged the validity of Clause (iii) of the impugned notification on the ground that the benefits of exemption from levy of GST on passenger transportation services by a non-air-conditioned stage carriage has been denied when such services/supply are availed through ECOs, even though such supplies continue to be exempted when booking is made by consumers directly through bus operators (offline/online) or offline agents.
Observations and Analysis
The Court noted that the ECOs for the purpose of Section 9(5) and Section 52 of the Act of 2017 are entities, which are liable to collect and pay tax on the supplies made through it by other individual suppliers. Thus, Sections 9(5) and 52 of the Act of 2017 statutorily recognize the ECO as a class distinct from the individual supplier registered with the ECO. An analysis of the referred provisions of the statute elucidates that the scheme of the Act of 2017, recognizes the supply of services through the ECOs as an independent taxable event of supply distinct from the individual service providers.
The Court, for instance, stated that hotel ABC International (fictional name) is exempt under Section 23(2) of the Act of 2017 from registration and if a customer walks into the hotel for a direct booking, he will not be liable to pay GST on the room rent. However, if another customer makes a booking through the e-platform of an ECO, for a room in the same hotel ABC International, he will be charged GST on the room rent and the ECO will be liable to pay the GST to the treasury.
The Court observed that a conjoint reading of Sections 22(1), 23(2), and 24(ix) with the notifications shows that it is the underlying scheme of the Act that even when the individual supplier is per se exempt from levy of GST under Section 23(2), however, if the service is provided by the same said individual supplier through an ECO, the said services are exigible to levy of GST under Sections 9(5) and 52 of the Act of 2017 respectively.
Thus, the effect of the impugned notifications in withdrawing the exemption from the ECOs and making the levy of GST, on the fare of non-air-conditioned stage carriage ticket booked through the electronic platform of Petitioner 3 is identical and not discriminatory. The effect of the impugned notifications in levying GST on the fare of an auto-rickshaw ride booked through the Uber App is identical and not discriminatory.
The Court opined that the object of the parent Notification, as it stands today post amendment, with respect to entries pertaining to auto rickshaws and non-airconditioned stage carriage is now limited to exempt the individual service providers only and this is in conformity with Section 11 of the Act of 2017 which permits the Respondent to grant an exemption absolutely or conditionally.
The Court held that it is unable to accept the challenge of Petitioner 1, 2, and 3 to the impugned notifications on the ground that they have a continuing right to claim exemption along with the individual suppliers. Thus, if respondents have decided to withdraw the exemption from this distinct category of consumer who opts to use the ECO for making bookings, the same is well within their legislative purview.
The Court concluded that
a) the Clauses (iii) and (iv) of Notification No. 16/2021- Central Tax (Rate) and Clauses 1(i) and 2(i) of Notification No. 17/2021- Central Tax (Rate), both dated 18-11-2021 are not violative of Articles 14, 19(1)(g) and 21 of the Constitution;
b) the impugned Notifications do not create an unreasonable classification based on the ‘mode of booking’ availed by the consumers;
c) the Respondents are empowered to issue the impugned Notifications under Section 9(5) and 11 of the Act of 2017 and we are, therefore, unable to accept the challenge to the constitutional validity of the said notifications.
[Uber India Systems Private Limited v Union of India, 2023 SCC OnLine Del 2216, decided on 12-04-2023]
Advocates who appeared in this case:
Mr. Bharat Raichandani with Mr. Arjyadeep Roy, Advocates for the Petitioner;
Mr. Asheesh Jain, CGSC with Mr. Adarsh Kumar Gupta and Mr. Keshav Mann, Advocates for UOI along with Mr. Abhishek Khanna, Government Pleader for UOI;
Mr. Aditya Singla, Sr. Standing Counsel for CBIC/R-2 with Mr. Yatharth Singh & Ms. A. Sahitya Veena, Advocate for the Respondent.