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2020 (9) TMI 1250 - AAAR - GSTInput Tax Credit - inputs/ Capital Goods used or intended to be used for creation of covered logistics facility space (warehouse) to be rented out for storage purposes - credit on inputs, if the goods and services are consumed and used in construction of covered logistic facility space when the said Input Tax Credit would be utilized in order to discharge and pay CGST and HGST/IGST on rent received from tenants of the warehouse - restriction imposed under Section 17(5)(d) of the CGST Act 2017 - HELD THAT:- In the instant case, the construction has been done by the Appellant for itself i.e. with all intentions to retain its ownership rights, and is only going to lease it to the other party. Thus the construction has been done, without any doubt, in the Appellant's own account. The same, in the light of what is clearly expressed in Section 17, sub-Section (5), clause (d) ibid, is not entitled to ITC on the inputs/ input services. The AAR has correctly observed that the applicant was engaged in the business of logistic services including warehouses constructed for the applicant's business of letting out; that, Section 17(5)(d) renders ITC unavailable in respect of goods and services received for construction of immovable property(other than Plant and Machinery) on Taxpayer's own account, including when such goods or services or both are used in the course of furtherance of business. Hon'ble court in M/S. SAFARI RETREATS PRIVATE LIMITED AND ANOTHER VERSUS CHIEF COMMISSIONER OF CENTRAL GOODS & SERVICE TAX & OTHERS [2019 (5) TMI 1278 - ORISSA HIGH COURT] has concluded that they do not intend to hold it [the provision of Section 17(5)(d/] as ultra-vires (Para 20 of the Order). Thus it is clear that the Hon'ble High Court has provided a liberal construction and the same as such is not law, particularly as the Department has challenged the same in the Hon'ble Supreme Court. The Appellant has itself admitted that the Hon'ble Apex Court has issued the notice. Thus the case shall be listed for arguments - The department has filed an appeal against the said judgment of the Hon'ble Orissa High Court in CHIEF COMMISSIONER VERSUS SAFARI RETREATS PRIVATE LIMITED [2020 (3) TMI 1150 - SC ORDER]. The case is presently pending after notice of admission. In view of the CBIC's ibid instruction, the case has not attained finality. The same is therefore not binding in the present case. Appeal dismissed.
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