TMI Blog2020 (3) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Hon ble Supreme Court and therefore the said issue is sub-judice. Therefore the instant application is liable for rejection under Section 98(2) of CGST Act 2017. The application is hereby rejected as the issue is pending before the Hon ble Supreme Court of India and hence is sub-judice. - KAR ADRG 08/2020 - - - Dated:- 10-3-2020 - DR. RAVI PRASAD M.P. AND SRI. MASHHOOD UR REHMAN FAROOQUI, MEMBER Represented by: Sri Sanjay Dhariwal Mandal, C.A., Authorised Representative. ORDER UNDER SECTION 98(4) OF THE CGST ACT, 2017 UNDER 98(4) or THE KGST ACT, 2017 1. M/s. Vikram Traders (called as the Applicant hereinafter), Subramanyapura, Uttarahalli, Bengaluru-560 061, Karnataka, having GSTIN number 29AAAFV7242B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract 18% of GST and Section 16 of the CGST Act 2017 specifies the eligibility and conditions for taking input tax credit. 4.2 The applicant quotes definitions of input u/ s 2(59), input service u/s 2(60), capital goods u/s 2(19), input tax u/ s 2(62), input tax credit u/s 2(63) and also Section 41 of the CGST Act 2017 which deals with claim of input tax credit and provisional acceptance thereof, states that a taxable person who is liable to pay output tax is eligible to set off available input tax credit on inputs which are used or intended to be used in the course of or furtherance of business subject to restrictions specified u/s 17 of the said Act. 4.3 The applicant further quotes section 17 (5) of the said Act and stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also violative of fundamental right to carry on business under Article 19(1)(g) of the Constitution, that all citizens shall have right to practice any profession, or to carry on any occupation, trade or business. The restriction of said ITC would impose a wholly unwarranted and unreasonable and arbitrary restriction which would render building constructed for letting out uncompetitive, by imposing the burden of double taxation of GST on such buildings i.e. firstly, on the inputs consumed in the construction and thereafter on the rentals generated by the building. 5. The applicant intend to rely on the decision of the Hon ble Orissa High Court in the case of M/s. Safari Retreats Pvt. Ltd., = 2019 (5) TMI 1278 - ORISSA HIGH COURT w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on which he has paid GST, it is required to have the ITC on the GST, which is required to pay under Section 17(5)(d) of the CGST Act. 6. In view of the above, the applicant states that the principle laid down by the Hon ble Court (supra) squarely applies to the instant case and prays for advance ruling in respect of the questions raised by them. PERSONAL HEARING / PROCEEDINGS HELD ON 02.01.2020. 7. Sri Sanjay Dhariwal Mandal, C.A., and duly authorised representative of the applicant appeared for personal hearing proceedings held on 02.01.2020 reiterated the facts narrated in their application. 8. FINDINGS DISCUSSION: 8.1 We have considered the submissions made by the Applicant in their application for advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the instant case; the non availability of input tax credit, under Sections 17(5)(c) (d) of the Act , is not applicable to the instant case and hence they are entitled for the Input Tax Credit. 8.5 It is pertinent to mention here that the Department has filed an appeal under SLP No.26696/2019 before the Hon ble Supreme Court of India, against the order of the Hon ble High Court of Orissa supra. Thus the issue is pending before the Hon ble Supreme Court and therefore the said issue is sub-judice. Therefore the instant application is liable for rejection under Section 98(2) of CGST Act 2017. 9. In view of the foregoing, we pass the following RULING The application is hereby rejected as the issue is pending be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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