9911796707
TMI Blog2025 (2) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... e business of retail trading, leasing and wholesale trading. In order to carry on its business, petitioner claims to have constructed shopping malls. After filings its returns under the CGST Act for the year 2019-20, an audit was initiated by the respondent. After scrutiny of the documents submitted, it was alleged that petitioner had availed input tax credit on works contract services for the construction of an immovable property and that it was ineligible to avail input tax credit since the output supply was not works contract service. Thereafter a show cause notice was issued on 29.05.2024 under section 73(1) of the CGST Act, requiring the petitioner to explain why the input tax credit should not be disallowed. Though a detailed reply wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel submitted that these specific instructions were not borne in mind by the State Tax Officer and on the contrary, in the impugned order, a finding was entered contrary to the instructions to come to the conclusion that the petitioner had wrongly availed ITC. The learned counsel further submitted that the jurisdiction of this Court ought to be exercised since the impugned order is perverse. 4. Smt. Jasmin M.M., the learned Government Pleader on the other hand, opposed the submissions and stated that the statutory remedy of an appeal is available to the petitioner and it must be relegated to pursue such remedies. It was also submitted that all contentions now raised before this Court are matters which can be considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exception carved out by clause (d) of section 17(5) and the functionality test will have to be applied to decide whether a building is a plant. The Court went on to hold that the question of applying the functionality test depends on the facts of each case and the tax officer must decide whether the construction of immovable property is plant for the purpose of clause (d) of sub section 17(5). 7. The above observations have great significance in the instant case since the petitioner's contention is that it is eligible to avail the input tax credit in view of the nature of business being carried on. Though the decision in Safari Retreat's case (supra) was rendered subsequent to the order of assessment, the said judgment is declaratory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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