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TMI Blog2025 (5) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... e the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act, 2017 would also mean reference to the corresponding similar provisions in the SGST Act, 2017. 1. The WBAAR vide order dated 14.01.2025 previously held that Supply of services as provided by the applicant would be covered by serial no 17(viii) of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as leasing or rental services and as a mixed supply, would attract tax @ 18%. 2. Aggrieved by the said ruling given by the WBAAR, Assistant Commissioner, Bidhan Nagar Division, CGST & CX, Kolkata North Commissionerate (hereinafter referred to as "the Appellant") filed an appeal before the West Bengal Appellate Authority for Advance Ruling (hereinafter referred to as the WBAAAR) against the Ruling passed by the West Bengal Advance Ruling Authority vide Advance Ruling Order No-18/WBAAR/24-25 dated 14.01.2025. 3. The respondent, TCG Urban Infrastructure Holdings Private Limited provides air conditioning system, fire sprinkler system, DG sets, electrical installations etc t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press or implied, can be determinative of the nature of the property. If the parties intend that the property in issue is for permanent addition to the immovable is not meant to be permanent, it indicates that it is movable. 4. Functionality Test: If the article is fixed to the ground to enhance the operational efficacy of the article and for making it stable and wobble free, it is an indication that such fixation is for the benefit of the article, such the property is movable. 5. Permanency test: If the property can be dismantled and relocated without any damage, the attachment cannot be said to be permanent but temporary and it can be considered to be movable. 6. Marketability Test: If the property, even if attached to the earth or to an immovable property, can be removed and sold in the market, it can be said to be movable." "11.9.9 Applying the tests of permanency, intendment, functionality and marketability, it is quite clearly evident that these items are not immovable but movable within the meaning of Section 3 of the Transfer of Property Act read with Section 3(36) of the General Clause Act. If we consider the nature of annexation of the tower to the earth, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Pune [2006 (3) TM1 - Supreme Court] along with a judgement in the case of Bharat Sanchar Nigam Ltd. Vs. Union of India [2006 (3) TM1 - SC]. 7. The respondent has submitted that the with reference to the judgement passed by the Hon'ble Supreme Court of India in M/s Bharati Airtel Ltd vs The Commissioner of Central Excise, Pune, the applicability of the tests of permanency, functionality, intendment and marketability in this case can be analysed as follows: Principle Facts in case of Telecom Tower Facts in case of the respondent Nature of annexation Towers and PFBs are attached to the earth but can be dismantled without damage The subject assets and fit outs are permanently affixed to the building and cannot be removed without causing damage indicating their immovable nature. Object of Annexation Towers and PFBs are attached to the earth for stability and functionality, not for permanent enjoyment of the land. The assets and fit-outs are intended for the permanent beneficial enjoyment of the building. Intendment of the Parties The intention is to provide stability to the antenna for effective functioning, not permanent attachment. The intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and maintained exclusively by TCGUIH. There must be a consensus ad idem as to the identity of the goods; In this case the consensus is not on the right to use the identified goods rather the ad idem is on the benefits from use of these goods. The lease charges include maintenance by TCGUIH. If it were a case of transfer of the right to use, the maintenance obligation would typically fall on the lessees. There must be a consensus ad idem as to the identity of the goods; In this case the consensus is not on the right to use the identified goods rather the ad idem is on the benefits from use of these goods. The lease charges include maintenance by TCGUIH. If it were a case of transfer of the right to use, the maintenance obligation would typically fall on the lessees. For the period during which the transferee has such legal right, it has to be the exclusion to the transferor this is the necessary concomitant of the plain language of the statute - viz. a "transfer of the right to use" and not merely a licence to use the goods; No exclusive possession is granted. The fit-outs are used by multiple tenants in common areas. TCGUIH retains all control and undertakes regular mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides applying respective tests and principles. 14. The case of 29/WBAAR/2023-24 dated 31.01.2024, on similar issue has been pointed out by the respondent where the WBAAR has pronounced its ruling that supply on account of hiring of electrical equipment, sprinkler system comprising fire detectors for true ceiling, air conditioning system up to the floor Air Handling Unit with existing ducting and diffusers, DG set emergency power supply would attract tax @ 18%. No appeal appears to have been filed on this and it did not come before WBAAAR. A ruling in another case cannot be held to be binding precedent. Section 103 of the CGST Act, 2017 specifically stipulates that an Advance Ruling pronounced would be binding to that particular applicant who had sought it and the same cannot be a precedent and applied to others. 15. It is needless to mention that the entire issue depends on the various clauses of the agreement entered into between the concerned parties wherefrom the actual nature of use of the assets concerned is required to be ascertained, i.e. whether they remain to be goods or become a part of an immovable property, which is required to be examined in depth. Fact that resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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