2020 (9) TMI 1144 - AAAR - GST

Input Tax Credit - lift installation charges paid to Fujitec - credit booked as Capital expenditure in their books without availing the depreciation on 18% GST charged by Fujitec - challenge to AAR decision - HELD THAT - The definition of the Plant and Machinery categorically excludes building or any other civil structure. Since, the lifts/elevators, erected, installed and commissioned in the buildings, are construed as an integral part of those building as held by the Advance Ruling Authority on the basis of the Hon'ble Apex court judgment mentioned in the impugned Advance Ruling, hence, the same would be excluded from the category of Plant and Machinery , in terms of the provisions related to the 'Plant and Machinery laid out. Further, the Larger Bench of the Supreme Court in the case of M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS 2014 (5) TMI 265 - SUPREME COURT has held that in the case of installation of lift after the goods are assembled and installed with skill and labour at the site, it becomes a permanent fixture of the building. Once it has been established that the lift, after its erection, installation and commissioning, would be considered as part of the building, and hence immovable property, the Appellant cannot claim ITC on the input services in terms of the provisions laid out under section 17(5)(d) of the CGST Act, 2017. The provision of Section 17 of CGST Act, says that ITC would be available on tax paid on works contract services when such services are an input service for further supply of works contract service. The appellant does not fulfill the conditions laid down above. It has to be understood that the exception carved out to provide ITC in the case of tax paid on works contract is for those who in turn provide works contract service. For eg when a principal gets a contract of work executed from a sub-contractor and provides the same to the employer. In such a case, the principal becomes eligible for ITC even though the contract results in immoveable property. However, the situation is far from it in the present case. Firstly, the society itself is not a works contract service provider. Nor is it in the business of providing works contract services. It has not itself provided any works contract service to the members. If the society is not itself a provider of the service there is no question of any ITC on input service. The works contract service is received by the society for the common benefit of the members. Circular No. 109/28/2019-GST, dated 22.07.2019 ,issued by the CBIC as referred to by the Appellant to contend that the Circular does not disallow the ITC in respect of goods, which become immovable property after being installed, and hence they are rightfully eligible to avail ITC in respect of the lift installation charges paid to the lift contractor, even if the lift is considered as immovable property, as held by the Maharashtra Advance Ruling Authority - we are of the view that the said Circular allows the ITC in respect of GST paid on Capital Goods only, and not on the works contract services. It is not in dispute that the Appellant is availing the works contact services from the lift contractor for the replacement of the lift in the Society, which after being installed, becomes immovable property, and therefore ITC in respect of GST paid on such works contract services would not be admissible to the Appellant. The Appellant will not be eligible to avail the ITC in respect of the GST paid on lift installation charges paid to the lift contractor, in terms of section 16(2)(b) read with section 17(5)(c) and 17(5)(d) of the CGST Act, 2017 - decision of AAR upheld - appeal not maintainable.

Summary

Issues Involved:
1. Eligibility for Input Tax Credit (ITC) on lift installation charges.
2. Classification of the lift as immovable property or plant and machinery.
3. Applicability of works contract services provisions.

Detailed Analysis:

1. Eligibility for Input Tax Credit (ITC) on Lift Installation Charges:
The Appellant, a Co-operative Housing Society, sought to determine if they were eligible for ITC on lift installation charges paid to Fujitec, booked as capital expenditure without availing depreciation on the 18% GST charged. The Appellant contended that the lift should be considered "Plant and Machinery," thus outside the purview of blocked credit under Section 17(5)(d) of the CGST Act, 2017. They relied on various definitions and provisions under the CGST Act, 2017, including Section 16(1) and the exclusion clause of Section 17(5)(d).

2. Classification of the Lift as Immovable Property or Plant and Machinery:
The Maharashtra Authority for Advance Ruling (MAAR) held that the lift, once erected, installed, and commissioned, becomes an integral part of the building, thus classified as immovable property. This classification was supported by the Supreme Court judgment in Triveni Engineering Industries Ltd. vs. C.C.E., which held that such installations are immovable property. Consequently, ITC on lift installation charges was deemed inadmissible under Section 17(5)(d) of the CGST Act, 2017, which excludes ITC for goods or services used for constructing immovable property.

3. Applicability of Works Contract Services Provisions:
The Appellant argued that they were providing works contract services to the society members by passing on the services received from the lift contractor without alteration. They claimed eligibility for ITC under Section 17(5)(c) of the CGST Act, 2017, which allows ITC on works contract services if used for further supply of such services. However, the authority found that the Appellant was not a works contract service provider and did not fulfill the conditions for ITC under this provision. The services were received for the common benefit of the society members, not for further supply of works contract services.

Respondent's Submissions:
The Respondent supported the advance ruling, citing the Supreme Court's ruling in Quality Steel Tubes Pvt. Ltd. vs. C.C.E., U.P., and other cases that classified lifts as part of immovable property. They contended that ITC was not available under Section 17(5)(d) of the CGST Act, 2017.

Personal Hearing:
During the hearing, the Appellant reiterated their arguments, emphasizing that lifts should be considered plant and machinery and that they were eligible for ITC under the provisions of Circular No. 109/28/2019-GST. The jurisdictional officer maintained that the advance ruling was correct and legal.

Discussions and Findings:
The authority examined the appeal and the impugned ruling. They agreed with the advance ruling that lifts, once installed, become part of the building and are thus immovable property. The definition of "Plant and Machinery" under Section 17(5) of the CGST Act excludes buildings and civil structures, supporting the exclusion of lifts from this category. The authority also found that the Appellant did not provide works contract services and thus was not eligible for ITC under Section 17(5)(c). The Circular No. 109/28/2019-GST was deemed inapplicable as it pertains to capital goods, not works contract services.

Order:
The authority upheld the ruling of the Maharashtra Advance Ruling Authority, concluding that the Appellant is not eligible for ITC on lift installation charges under Section 16(2)(b) read with Sections 17(5)(c) and 17(5)(d) of the CGST Act, 2017. The appeal was rejected.