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TMI Blog2020 (7) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to such a similar provision under the CGST or MP GST Act would he mentioned as being under the GST Act. 3. BRIEF FACTS OF THE CASE - 3.1 Atriwal Amusement Park was incorporated on 13th March 2018. With 5000000 Share Holders Holding 4970000 shares of Rs. 10/- each. 3.2 Applicant has a proposed activity of construction of Water Park, for construction of the same various components & services will be used. All such components & services are taxable under GST. 4. QUESTION RAISED BEFORE THE AUTHORITY - 4.1 Whether we are eligible to take credit on Input Tax paid on Purchase of Water Slides? Water Slides are made up of Strong PVC. 4.2 Water Slides are installed on Steel and Civil Structure. Credit of Tax paid on Input goods and services used in construction of this support structure will be available or not? 4.3 Input Tax will be available or not on Goods and services used for area development and preparation of land on which water slides are erected. 4.4 Whether applicant will be eligible to take credit of Input Goods and Services used for construction of Swimming Pool / Wave Pool as water slides directly run into pools? 5. RECORD OF PERSONAL HEARING - 5.1 CA Ankit Khatri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of water slides and should be considered as single unit as without Swimming pool / Wave Pool there is no use of water slides. Hence this forms the support structure for water slides as slides are directly connected to swimming pool / Wave Pool. 6. DISCUSSIONS AND FINDINGS - 1. The explanation below Section 17 (6), relating to the expression "plant and machinery- has included foundation and structural support in the term "plant and machinery". It has also been stated that such foundation and structural support are used for fixing apparatus. equipment and machinery. Therefore. in the definition, foundation and structures are duly included. Further the definition has excluded land building and any other civil structure from the definition of the "plant and machinery". Prima facie, there seems to be contradiction in the inclusion of "such foundation and structural supports" and exclusion of "......building or any other civil structures". 2. Foundation: 2.1. Foundation means a usually stone or concrete structure that supports a building or structure from underneath. Foundation Bolts are used to fasten machinery or structures to the foundations. Dictionary meaning of Foundation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, buildings and equipment used in an industry." 7. Judicial pronouncements have also enlarged the definition of the term plant. Some of the pronouncements are as under: 7.1. In the matter of SHANMUGARAJA SPINNING MILLS LTD. Versus COMMR. OF C. EX., COIMBATORE reported in 1998 (98) E.L.T. 702 (Tribunal) it has been stated as under by the Honorable CESTAT: 2...................... "Plant" is a very wide term. Supreme Court observed that the word must be construed in its popular sense and that the very fact that even books and surgical instruments have been included showed the meaning to be given to "Plant" was wide. The Court referred to the decision in Jarrold's case -1982 (40) TC 681 (C.A.), assets such as heating, air-conditioning and water-softening installations were held to fall within the meaning of 'plant' in the English judgment, although they played a passive role. Supreme Court held that sanitary fittings in the bathroom in a hotel would be 'plant' within the ambit of Section 10(5) I.T. In C.I T. v. Tajmahal Hotel - (1971) 82 I.T.R. 44 (SC) = 1971 (8) TMI 2 - SUPREME COURT. It was held by Allahabad High Court that "the word 'plant' in common parlance included within it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and restrict it to the value or cost of purchase of plant itself. The plant and machinery for manufacturing of cement by itself would be nothing and would he useless. unless they are properly installed and erected with proper foundations and civil work for erection thereof and in that process. the use of cement would constitute an integral part of the overall cost of the plant and machinery itself. Such overall immovable asset in the form of plant and machinery purchased. installed and erected by the petitioner assessee, would only he fit for use for manufacturing of cement itself later on. But, the term "Plant" is not defined in the KVAT Act and therefore, one can take a broad view and interpret the meaning of the word 'Plant' with the help of precedents or case laws. which we would shortly refer. 12. Once the Court comes to the conclusion that the cement, used for erection and setting up of the Plant and machinery, would constitute a "Plant and therefore, is Capital Goods, as defined under Section 2(7) of the KVAT Act, the recourse can also be made to Section 12 of the KVAT Act quoted above and the input tax in respect of the purchase of capital goods, including the cost of "P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, Appellate Authority and the Assessing Authority and remit the matter to the Assessing Authority for reconsideration of the matter. 7.5. Further, the Honorable Supreme Court in the case of Scientific Engineering House Pvt. Ltd. (supra) relied upon certain following foreign decisions while dealing with the explanation 'Plant' and gave it a wide meaning under the provisions of Income Tax law in the following manner: The classic definition of 'plant' was given by Lindley, L.J. in Yarmouth v. France, [1887] 19 Q.B.D. 647, a case in which it was decided that a cart-horse was plant within the meaning of section 1 (1) of Employers' Liability Act, 1880. The relevant passage occurring at page 658 of the Report runs thus:- "There is no definition of plant in the Act: but, in its ordinary sense, it includes whatever apparatus is used by a businessman for carrying on his business, - not his stock-in-trade which he buys or makes for sale: but all goods and chattels, fixed or movable, live or dear which he keeps for permanent employment in his business." In other words, plant would include any article or object fixed or movable, live or dead. used by businessman for carrying on his bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trade of the company within section 279(1) of the English Act. In that case. the dry dock had been made, the walls and bottom of which had to be strong and impervious to water so that large vessels could get into it for the purposes of repairs. In the facts and circumstances of the said case, it was held that the entire dry dock together with the ancillary structures constituted plant. In Schofield v. R. and H. Hall Ltd. [1974] 49 TC 538 (CA) concerning silosbuilt in the shipyard. The company carried on a trade which consisted of storage of grain. The question was whether the silos is part of the setting in which such trade was carried on. It was found that considering the function of the silos in relation to the assessee's trade. the silos served as an essential part of' the overall trading activity. Their function was to hold the grain in a position from which it could he conveniently discharged in varying quantities. Hence, it was held that the silos would rank for capital allowance. In C.I.T v. Kanodia Cold Storage - (1975) UPTC 169 = 1974 (5) TMI 18 - ALLAHABAD HIGH COURT, the question was whether the building with insulated walls used as a freezing chamber, though it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of the term apparatus, equipment and machinery and therefore, shall be eligible for claim of ITC. 7.2 Regarding the Steel and Civil Structure on which the Water Slides are installed, we have to state that foundation and support structures which are used to fasten plant and / or machinery to the Earth is classifiable as 'Plant and / or Machinery'. In the instant case. slide are fastened to the Steel and Civil Structure are affixed to the Earth through these Steel an Civil Structures. Therefore, these Steel and Civil Structures shall form part of the Plant and Machinery. Accordingly. the credit of "Fax paid on Input goods and services used in construction of this support structure shall be available. 7.3 It has been stated that for Wave Pool, Machines have been installed. The foundation for these machines are eligible to be part of the Machines and the ITC shall be treated in a manner similar to that of the Machines. However, the Machine Room, which is a civil structure, erected for protecting machine is neither foundation nor civil structure for machine therefore, IT relatable to the construction of the room for Housing the machine shall not be eligible for ITC. 7.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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