JUDGMENT :

G.S. KULKARNI, J.

The judgment has been divided into the following sections to facilitate analysis:

1. Their Lordships of the Division Bench have spoken in different voices in deciding the above Writ Petitions. In view of the cleavage of opinion, by an order dated 16 June 2021 the Division Bench recording the disagreement, ordered that the proceedings be placed before the Hon’ble the Chief Justice. Consequent thereto, by an order passed by the Hon’ble the Chief Justice, the proceedings are referred for the opinion of this Court.

(A) PRELUDE

2. The petitioners in both the petitions primarily challenge the constitutional validity of the provisions of Section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017 (for short “the IGST Act”). In Writ Petition No. 2031 of 2018, there is an additional prayer assailing the constitutional validity of Section 8(2) of the IGST Act. The petitioners have commonly contended that the impugned provisions are violative of Articles 14, 19, 245, 246, 246A, 248, 265, 269A, and 286 of the Constitution.

3. As noted in the referral order, one of the Hon’ble Judges of the Division Bench, struck down Section 13(8)(b) of the IGST Act as ultra-vires, the IGST Act, besides being unconstitutional, whereas the companion Hon’ble Judge upheld the validity of the said provisions on all counts. The referral order dated 16 June 2021 passed by the Division Bench needs to be noted which reads thus:

“1. There is difference of opinion in the Bench.

2. Matters relate to constitutionality of section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017. While as per one opinion (opinion of Justice Ujjal Bhuyan) the said provision is unconstitutional, Justice Abhay Ahuja has expressed his disagreement and has rendered his separate opinion today.

3. In view of such difference in opinion, Registry to place the matters before Hon’ble the Chief Justice on the administrative side for doing the needful.”

(B) FACTS

4. Although the facts are not in dispute and are succinctly set out in both the judgments of the learned members of the Division Bench, reference to the nature of the business and transactions of the petitioners would aid the discussion.

5. At the bar, Writ Petition No. 2031 of 2018 (Dharmendra M. Jani vs. The Union of India and Others) was argued as the lead petition before the Division Bench as also before this Court, hence, in some detail the facts in such petition are being referred hereunder.

6. The petitioner, a proprietary firm, is engaged in providing marketing and promotion services to its customers located outside India. The overseas customers to whom services are provided by the petitioner are inter-alia engaged in the manufacturing and/or sale of goods. Such customers may or may not have an establishment in India. The petitioner provides services only to its foreign principal and receives consideration in convertible foreign exchange. To provide such services, the petitioner enters into an agreement with its overseas customers. Illustratively, a copy of one such agreement is placed on record at Exhibit-C. Under such agreement, the petitioner provides services to enable his foreign principal to get purchasers for its goods in India or elsewhere. The petitioner thus undertakes activities of marketing and promotion of goods sold by its overseas customers in India.

7. The service as provided by the petitioner fructifies, if an Indian purchaser [importer] directly places a purchase order on such overseas customer of the petitioner, for supply of goods. Such transaction is enabled as a result of the service so provided by the