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2025 (1) TMI 1135 - HC - GSTVires of Section 17(5)(c) and 17(5)(d) of the Central GST Act/Punjab GST Act 2017 - HELD THAT - The issue raised by the petitioner in the present petition assailing the vires of Section 17(5)(c) and 17(5)(d) of the Central GST Act/Punjab GST Act 2017 is no more res integra in view of the judgment passed by the Supreme Court in Chief Commissioner of Central Goods and Service Tax vs. Safari Retreats (P.) Ltd. 2024 (10) TMI 286 - SUPREME COURT wherein the Supreme Court has concluded The challenge to the constitutional validity of clauses (c) and (d) of Section 17(5) and Section 16(4) of the CGST Act is not established. While the Apex Court has directed all the petitions to be heard by the concerned High Court and examine the functionality test it is found that in the present case the matter can be remanded back to the respondents to re-examine the aspect and pass a speaking order after giving an opportunity of hearing to the petitioner. The writ petition is accordingly partly allowed by way of remand.
In the case before the Punjab and Haryana High Court, the petitioner challenged the constitutional validity of Sections 17(5)(c) and 17(5)(d) of the Central GST Act/Punjab GST Act, 2017. The High Court referenced the Supreme Court's decision in *Chief Commissioner of Central Goods and Service Tax vs. Safari Retreats (P.) Ltd.*, which clarified that the challenge to these sections' constitutional validity was not established. The Supreme Court emphasized that the term "plant or machinery" in Section 17(5)(d) differs from "plant and machinery" as defined elsewhere in the Act. It further stated that determining whether a building qualifies as a "plant" depends on the functionality test, considering the building's role in the business activities of the registered person.
The High Court decided to remand the case to the respondents for re-examination, instructing them to apply the functionality test and provide a "speaking order" after hearing the petitioner. Consequently, the notice in Form GST ASMT-10 issued on July 17, 2024, was set aside, and the writ petition was partly allowed. All pending applications were disposed of accordingly.
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