Madras High Court
Uber India Systems Private Limited vs Union Of India on 16 April, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P. No.3732 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.04.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.3732 of 2021
Uber India Systems Private Limited,
Rep by its Authorised Signatory Mr.Manivannan
Ground Floor, West Wing, 116 to 122, Block No.64,
Ten Square Building, Jawaharlal Nehru Road,
Koyembedu Village, Chennai - 600 107.
.... Petitioner
Vs.
1.Union of India,
Through Secretary,
Ministry of Finance,
Department of Revenue,
New Delhi - 110 001.
2.The Central Board of Indirect Taxes and Customs,
North Block, Department of Revenue,
Ministry of Finance, Government of India,
New Delhi -110 001.
.... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to
Writ of Mandamus to direct the respondent no.2 to consider and decide the
representations dated 31 August 2020, 3 December 2020, 11 December 2020 and 15
January 2021 filed by the petitioner Expeditiously in a time bound manner.
For Petitioner : Mr.Onkar Sharma for
Mr.Aditya Reddy
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W.P. No.3732 of 2021
For Respondents : Mr.A.P.Srinivas,
Senior Standing Counsel
ORDER
The petitioner is Uber India Systems Private Limited, a company engaged in the business of operating and managing a software application by the name of “Uber App” which enables consumers to avail ride-hailing services by connecting them with drivers.
2. The writ petition has been filed seeking a Mandamus directing R2, the Central Board of Indirect Taxes and Customs to consider and decide its various representations, the most recent being dated 15.01.2021, on the taxability of the receipts from its services as aforesaid under the Goods and Service Tax Act, 2017.
3. When the matter had come up for admission on 22.02.2021, I had stated as follows:
'2. The prayer in the writ petition falls within a narrow campus, seeking a mandamus directing the second respondent/the Central Board of Indirect Taxes and Customs to decide on representations dated 31.08.2020, 03.12.2020, 11.12.2020 and 15.01.2021, all targeted towards seeking uniformity in the levy of Central GST and State GST on use of motor cycles, as contract carriages, in terms of Section 2(22), (25) and (26) of the Motor Vehicles Act, 1988.
3. According to the learned Senior Counsel appearing for learned counsel for the petitioner, only the petitioner is complying with the levy of GST under Notification 17 of 2017-Central Tax (Rate) dated 28.06.2017 while other similarly/identically placed operators are not.2/6
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4. R2 is directed to hear the petitioner as well as other similarly placed operators in respect of whom any decision taken in this matter will have an impact on this issue, and pass orders on the representations of the petitioner within a period of six (6) weeks from today, notwithstanding the pendency of this writ petition.'
4. A counter has been filed by the respondents on 12.04.2021, wherein at paragraph no.11, the deponent refers to a hearing conducted on 26.03.2021, wherein the representatives of the petitioner company as well as Rapido, participated with officials from the Revenue Department. The views of other similarly placed operators appear to have been solicited and received over e-mail.
5. The counter summarises the minutes of the meeting at paragraphs 18 to 20 as follows:
'18. I submit that, as discussed above, all the major stakeholders viz. Uber India, Ola Cabs and Rapido, irrespective of whether they are discharging GST liability or not, agreed during the hearing that there is no ambiguity in the GST exemption notification and that the same does not exempt service of transportation of passengers using motor cycles not having contract carriage permit. Hence, such services of transport of passenger (through motor cycles not having contract carriage permit) is liable to GST.
19. I submit that, as regards the issue raised by Uber India and others that different States have different rules for issuance of contract carriage permits for motor cycles for use as bike taxis and it is difficult to obtain permits even in states which allows the same, this issue is in the purview of state legislatures, who only has to take a view as to the inclusions, exclusions, conditions, manner etc. for contract carriage permit. There is no obligation on the states to issue contract carriage permit in respect of every vehicle used for commercial transport of passenger.
20. I submit that, since there is no ambiguity in the scope of the GST exemption entry at Sl. No.15(b) of Notification No.12/2017-Central Tax (Rate), as also agreed to by the stakeholders at the hearing, no action is required to be taken by the Board on representations submitted by Uber India, Rapido and Ola seeking clarification on the said exemption entry. RAPIDO representative was 3/6 https://www.mhc.tn.gov.in/judis/ W.P. No.3732 of 2021 advised to discharge GST in terms of GST provisions as they exist. As regards the alleged non-payment of GST by some suppliers on transport of passengers by motor cycle without contract carriage permit, action as appropriate in law would be taken.'
4. The position in law, as laid down in Notification 12 of 2017, specifically Sl. No.15 (b), would apply in regard to the taxability of the transaction, and the petitioner as well as other similarly placed stakeholders appear to have acquiesced with this position. The apprehensions levelled by the petitioner to the effect that other operators are adopting differing positions in regard to the taxability of business receipts stands assuaged, the respondent stating that necessary action would be taken to ensure that there is compliance, across the board. This is recorded.
5. Recording the averments in counter as well as the submissions of Mr.Onkar, learned counsel for the petitioner, to the effect that proceedings have been conducted and resolved satisfactorily, the mandamus sought for stands achieved, and this writ petition is closed. No costs.
16.04.2021 rkp Index:Yes Speaking order 4/6 https://www.mhc.tn.gov.in/judis/ W.P. No.3732 of 2021 To
1.Union of India, Through Secretary, Ministry of Finance, Department of Revenue, New Delhi - 110 001.
2.The Central Board of Indirect Taxes and Customs, North Block, Department of Revenue, Ministry of Finance, Government of India, New Delhi -110 001.5/6
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