No, the President should not grant the appeal.

The court have already ruled in the case of PSALM vs CIR G.R. No.
198146, August 8, 2017, which has similar facts, that a the phrase ”in the
course of trade or business” means the regular conduct or pursuit of a
commercial or an economic activity, including transactions incidental
thereto, by any person regardless of whether or not the person engaged
therein is a non-stock, non-profit private organization (irrespective of the
disposition of its net income and whether or not it sells exclusively to
members or their guests), or government entity. Further, the sale of the
power plants is not “in the course of trade or business” as contemplated
under Section 105 of the NIRC, and thus, not subject to VAT. The sale of the
power plants is not in pursuit of a commercial or economic activity but a
governmental function mandated by law to privatize NPC generation assets.

As such, the sale of the power plants as per mandate of PSALM via the
passage of the EPIRA LAW was simply an exercise of a governmental
function to which the purpose is to privatize the assets of NPC. Thus, it
would not fall within the ambit of the phrase “in the course of trade or
business” as there is no commercial economic gain for it to be subjected to
VAT.

Therefore, the President should not grant the appeal of the BIR to set
aside the decision of the Secretary of Justice and to subject the sale with
12% VAT.