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TMI Blog2024 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ra vires and not unconstitutional. However, their Lordships in M/s Safari Retreats Private Ltd. s case further held that the question whether the construction of immovable property carried out by the petitioners therein amounts to plant has to be decided on its merit by applying the functionality test in terms of the judgment passed in the aforesaid case. Their Lordships also held that the issue must be decided in appropriate proceedings in which adjudication can be made on facts and granted liberty to the petitioners therein to adopt appropriate proceedings or raise the issue in appropriate proceedings. While dismissing the present writ petition qua the constitutional validity of clauses (c) (d) of Section 17 (5) of the CGST Act, liberty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2 of the writ petition i.e. his case is covered under Section 17 (5) (d) of the CGST Act, (other than plant or machinery) and as such, he be given liberty to raise the issue in appropriate proceeding as granted by their Lordships of the Supreme Court in the aforesaid judgment. 4. The learned Deputy Solicitor General of India and the learned State counsel have not opposed the submission of learned counsel for the petitioner. 5. We have heard learned counsel for the parties and considered their submissions and also went through the material available on record carefully and meticulously as well. 6. The Supreme Court in M/s Safari Retreats Private Ltd. s case (supra) has considered the issue and held clauses (c) (d) of Section 17 (5) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether the construction of an immovable property is a plant for the purposes of clause (d) of Section 17 (5). 66. In the light of what we have held above, by setting aside the impugned judgment in Civil Appeal Nos.2948 and 2949 of 2023 , the writ petitions are remanded to the High Court of Orissa for limited purposes of deciding whether, in the facts of the case, the shopping mall is a plant in terms of clause (d) of Section 17 (5). Appeals are partly allowed in above terms. 67. While deciding these cases, we cannot make any final adjudication on the question of whether the construction of immovable property carried out by the petitioners in Writ Petitions amounts to plant, and each case will have to be decided on its merit by applying t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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