Facts of the Case
- The
petitioners, Central Electricity Regulatory Commission (CERC) and Delhi
Electricity Regulatory Commission (DERC), are statutory bodies constituted
under the Electricity Act, 2003.
- Show
Cause Notices dated 29.05.2024 and 23.07.2024 were issued alleging
non-payment of GST on fees such as tariff fee, license fee, filing fee,
and other charges collected by the Commissions.
- The
department classified such activities as “support services to
electricity transmission and distribution” (SAC 998631) and sought to
levy GST @18%.
- A demand of over ₹112 crore IGST was proposed against CERC for the period 2019–2023.
Issues Involved
- Whether
fees collected by Electricity Regulatory Commissions constitute “supply”
under Section 7 of CGST Act, 2017.
- Whether
regulatory functions of statutory bodies fall within “business”
under Section 2(17).
- Whether
such functions can be classified as taxable services under GST law.
- Whether
distinction between regulatory and adjudicatory functions is valid
for GST applicability.
- Applicability of Schedule III (services by court/tribunal) exemption.
Petitioner’s Arguments
- The
Commissions perform statutory and quasi-judicial functions, not
commercial activities.
- Fees
collected are not consideration for any service, but statutory
levies.
- Regulatory
functions are carried out in public interest, not in the course of
business.
- Electricity
Commissions possess trappings of a tribunal, hence covered under
Schedule III exclusion.
- No GST is leviable in absence of commercial intent or business activity.
Respondent’s Arguments
- Activities
of CERC/DERC fall under “supply of services” as per Section 7 of
CGST Act.
- Fees
received qualify as “consideration” under Section 2(31).
- Even
non-profit or statutory activities are covered under “business”
definition.
- Regulatory
bodies are not Government or local authorities, hence no exemption.
- Only adjudicatory functions are exempt; regulatory functions remain taxable.
Court’s Findings / Judgment
- The
Court held that regulatory functions cannot be equated with business
activities under Section 2(17).
- Essential
elements of GST levy—supply, consideration, and business nexus—were
absent.
- Fees
collected were not in furtherance of business, hence outside GST
scope.
- Electricity
Regulatory Commissions function as quasi-judicial bodies with tribunal
characteristics.
- Schedule
III exclusion (services by court/tribunal)
applies.
- The
artificial distinction between regulatory and adjudicatory functions
was rejected.
- Notifications cannot override statutory exemption under the Act.
Court Order
- The
Delhi High Court quashed the Show Cause Notices dated 29.05.2024
and 23.07.2024.
- Held that GST is not leviable on regulatory functions performed by electricity regulatory commissions.
Important Clarifications by Court
- Regulatory
functions under statute ≠ business activity.
- Statutory
fees ≠ consideration for supply.
- Schedule
III exemption has overriding effect.
- Notifications
cannot expand tax liability beyond the Act.
- No bifurcation permissible between regulatory and adjudicatory roles.
Sections Involved
- Section
7 – Scope of Supply (CGST Act, 2017)
- Section
2(17) – Definition of Business
- Section
2(31) – Consideration
- Section
9 – Levy of GST
- Schedule
II & Schedule III – Classification of Supply
- Section
73 – Demand of Tax
- Section
50 – Interest
- Section
122 – Penalty
- IGST
Act, 2017 (relevant provisions)
- Electricity Act, 2003 (Sections 79 & 86)
Link to download the order - https://delhihighcourt.nic.in/app/showFileJudgment/YVA15012025CW106802024_182128.pdf
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