9911796707
TMI Blog2024 (10) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-24 dated 11.7.2023 issued by the respondent. 3. Facts of the case, in brief, are that the petitioner is engaged in construction of building and rental "Rental or leasing services involving own or leased non-residential property". The petitioner is having GST Registration No.23AAOFC4350R1Z0. The petitioner has constructed a building on own land for the purpose of giving it on lease to M/s Shishukunj Knowledge Society for running a school. For the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition was directed to be listed on 3.10.2024. On 3.10.2024 Shri Prasad informed this Court that the final order has already been passed on 30.9.2024. Shri Bhati, learned counsel appearing for the petitioner sought two day's time to produce the copy of the judgment to be passed by the Apex court on a similar issue. The petitioner filed the copy of judgment passed by the Apex Court in Civil Appeal No.2948/2023 (Chief Commissioner of Central Goods 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Retreats Private Ltd. (supra) is relating to the construction of the mall. The Apex Court has held that each mall is different, therefore, in each case fact 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to send the case back to the High Court 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. A developer may construct a mall predominantly to sell the premises therein after obtaining an occupation certificate. Therefore, it will be out of the purview of clause 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 build ..... X X X X Extracts X X X X X X X X Extracts X X X X
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