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TMI Blog2024 (10) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... finding enquiry is contemplated. The High Court has not decided whether the mall in question will satisfy the functionality test of being a plant. The matter has been remanded back to decide, whether, on facts, the mall in question satisfies the functionality test so that it can be termed as a plant within the meaning of bracketed portion in Section 17 (5) (d). The same applies to warehouses or other buildings except hotels and cinema theatres. The Apex Court has held that if the building in which the premises are situated qualifies for the definition of plant, ITC can be allowed on goods and services used in setting up the immovable property, which is a plant. The petitioner was required to satisfy adjudicating authority, whether the build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of construction of building, various goods namely bricks, cement, electrical equipment, hardware, RMC, sanitary, steel, stone, tile, sand, paint, doors etc. were purchased. The petitioner availed the Input Tax Credit (ITC) charged on the purchase/supply of the aforesaid goods consumed and used in the construction of the said school building. 4. The petitioner received summon dated 11.2.2022 and 18.2.2022 from the office of Directorate General of GST Intelligence for production of account statements, details of ITC availed, reconciliation sheet for outward supply, ITC availed and ITC utilized. In compliance of the aforesaid summon, Shri Anil Kumar Somani, GM Accounts appeared and recorded his statement and the petitioner was made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Services Tax and others Vs. M/s Safari Retreats Private Ltd. and others). 6. Shri P. Prasad, learned counsel has filed copy of adjudication order bearing No. GEXCOM/ADJN/GST/JC/148/2024/Adjn/O/o Commr-Indore dated 30.9.2024 along with an application for taking additional documents on record and submitted that the petitioner is now having remedy to file appeal against the said order and the petition is liable to be dismissed. 7. Shri N.S. Bhati, learned counsel for the petitioner submits that the petitioner constructed a building for leasing out to M/s Shishukunj Knowledge Society for running school, therefore, the petitioner is entitled for ITC under Clause (c) (d) of sub-section 5 of Section 17 of the CGST Act, as held by the Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of bracketed portion in Section 17 (5) (d). The same applies to warehouses or other buildings except hotels and cinema theatres. The Apex Court has held that if the building in which the premises are situated qualifies for the definition of plant, ITC can be allowed on goods and services used in setting up the immovable property, which is a plant. Para 54, 55 56 are reproduced below:- 54. One of the arguments of leaned ASG was that if different meanings were given to the words plant and machinery and plant or machinery , it could result in discriminatory treatment. Clause (c) of Section 17 (5) operates in a completely different field, as it applies only to works contract services supplied for the construction of immovable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 5(b) of Schedule II. Each case will have to be tested on merits as the question whether an immovable property or a building is a plant is a factual question to be decided. 10. Therefore, the petitioner was required to satisfy adjudicating authority, whether the building in question qualifies for the definition of plant in order to avail the ITC, but the petitioner instead of submitting all these necessary documents chosen not to appear before the authority and directly approached this Court. Now the final order has been passed, which has not been challenged in this petition. The petitioner is having remedy to file an appeal against the said order. The petitioner is free to file an appeal before the appellate authority, wherein the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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