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TMI Blog2023 (7) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant in the present case has submitted that the infrastructure is used for making outward supply of services; that the transformers, Network Grid, Cables etc. shall qualify as an equipment/apparatus/machinery which has been fixed to earth by structural support; that various infrastructure created by the applicant is for a particular purpose or function; that the said infrastructure is deployed for provisioning of infrastructure support services and is ultimately used for distribution of electricity; that equipment such as Transformer, RMU etc., shall qualify as plant and machinery - the immovable property created by the applicant does not fall under the category of plant and machinery therefore they are not eligible to claim Input Tax Credit. Thus, as input tax credit is not available, it is not necessary to go into other issues. - SH. ANUP KUMAR, AND SH. LEKH RAJ, MEMBER Represented for the Applicant by : Mrs. Ritu Gupta, HOD Taxation PROCEEDINGS (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Delhi Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 (Sr. No.4(l), CBIC has already clarified that the activities carried by DISCOMS against recovery of charges from consumers under State Electricity Act are exempt from GST. 3.3 In support of his claim. Applicant has relied upon following provisions:- a) Section 16(1) of CGST Act entitles the registered person to take credit of input tax: b) Section 17(2) of CGST Act read with Rule 42 and 43 of the CGST Rules restricts a person to claim ITC to the extent it relates to the taxable outward supplies; c) Section 17(5)(c) and Section 17(5)(d) impose restrictions upon ITC on certain supplies by way of notwithstanding clause to Section 16(1); d) Explanation to Section 17 provides the meaning of expression plant and machinery for Chapter V (ITC) and Chapter VI (Registration) of the CGST Act. 4. Additional submissions dated 24.02.2023 and 12.04.2023 by the Applicant: 4.1 The applicant vide letter dated 24.02.2023 inter alia submitted that the question which is posed before the Authority is regarding admissibility of the ITC, which is neither pending nor decided by any Authority; that, the issue of taxability of such supply may be before the Hon'ble Delhi High Court in Writ Petition (Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to which the Revenue Central Government requested for adjournment of 15 more days to submit their comments. The applicant vide letter dated 24.02.2023 made additional written submissions. Further, vide letter dated 12.04.2023 the applicant requested to give ruling on additional supplementary questions as detailed SI. No. 3 and 4 at para 1 above. Final Hearing in matter was conducted on 04.05.2023. Discussion and findings 8. We have considered the submissions made by the applicant in their application dated 05.12.2019 for advance ruling; their additional submissions dated 24.02.2023 and 12.04.2023; the comments furnished by the jurisdictional Central Revenue Officer and State Revenue Officer; and those put forth by the Atul Gupta, Advocate and other representatives of the applicant during the personal hearing. 8.1 On careful perusal of the entire case records, placed before us, the moot issue is, whether input tax credit (ITC) for capital goods, input and input services is available to the applicant in undertaking consumer funded jobs i.e. creating infrastructure for electricity distribution and if so, whether any amount of such ITC is required to be reversed by the taxpayer under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions, Load enhancement etc. 8.7 Further, we observe that the list of services as stated at para 9 of the Annexure-I of the Application Form for advance Ruling are services other than the services of Electricity Transmission and Distribution provided by the applicant to its customers in addition to the principal supply of Electricity Transmission and Distribution . The inputs as stated at para 4 of the Annexure-I of the application form for advance ruling appears to be the expenses incurred for creation infrastructure for electricity transmission. Hence, the inputs used for creating infrastructure for electricity transmission cannot be held to be used in the Business of taxable supplies stated at para 9 of the Annexure-1. 8.8 The applicant in the present case has submitted that the infrastructure is used for making outward supply of services; that the transformers, Network Grid, Cables etc. shall qualify as an equipment/apparatus/machinery which has been fixed to earth by structural support; that various infrastructure created by the applicant is for a particular purpose or function; that the said infrastructure is deployed for provisioning of infrastructure support services and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .- For the purposes of this Chapter and Chapter VI, the expression plant and machinery means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes,- (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises. 16. From the above discussion we found that the immovable property created by the applicant does not fall under the category of plant and machinery therefore they are not eligible to claim Input Tax Credit. 17. In view of above, both the members unanimously rule as under: (iv) Whether, ITC is available to the applicant in undertaking deposit works i.e. creating infrastructure for electricity transmission? Ans. Not eligible to claim Input Tax Credit. ORDER 9. In view of foregoing discussion, we order as under: 1. Whether the input tax credit (ITC) for input and input services is available to the applicant in undertaking consumer funded jobs ? No 2. Whether input tax credit for the capital goods is available to the applicant in undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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