2019 (9) TMI 1412 - AAAR - GST

Appellate Authority Upholds Decision on Input Tax Credit for Works Contract

In Re: P.K. Mahapatra

The Appellate Authority affirmed the decision of the Advance Ruling Authority, ruling that the appellant is not entitled to Input Tax Credit (ITC) on the ... Input Tax Credit - design and engineering of lighting for plant road, boundary wall and watchtower - supply of plant and equipment for lighting of plant road, boundary wall and watch-tower - Erection of plant and equipment for lighting of plant road, boundary wall and watch-tower. Design and engineering of lighting for plant road, boundary wall and watchtower - HELD THAT:- Works contract, covers in its ambit only certain works performed on immovable property we in affirmation with the findings of the AAR and more so with no visible intention to dismantle the said project for lighting and these being intended to be used for a fairly long period of time and on the basis of the scope of work itself as forthcoming from the contract agreement supra between the Appellant M/s. NMDC and M/s. Bajaj Electricals, come to the considered conclusion that the resultant structures are civil structures with foundations and are immovable in nature. Supply of plant and equipment for lighting of plant road, boundary wall and watch-tower - HELD THAT:- Whether credit of the taxes paid on various items will be eligible if the said lighting project satisfies the definition of 'plant and machinery' and that Lighting of plant road boundary & watchtower which comprises of items like street poles, fittings, aviation lamps, switch box, pipes for laying the cables would qualify as an apparatus or an equipment. The test of immovable property is not relevant for plant and machinery as Section 17(5)(c) and (d) exclude plant and machinery from immovable property. Since, plant and machinery are excluded from immovable property, construction and other activity in relation to plant and machinery shall be eligible for Input Tax Credit unless otherwise restricted. The restriction of ITC is only on the telecom towers, pipelines which are not treated as plant and machinery by virtue of explanation to Sec. 17(5)(c) and (d) - Input Tax Credit provisions restrict ITC credit of works contract services for works to be performed on immovable property and also restrict the credit of construction, related activity of immovable property even when construction activity do not fall into the scope of works contract. However, works contract and construction activity is eligible for Input Tax Credit if done in respect of plant and machinery. Erection of plant and equipment for lighting of plant road, boundary wall and watch-tower - HELD THAT:- The said project for lighting consisting of civil structures as discussed above cannot be said to be used by the Appellant for making outward supply of goods or services or both, which is the utmost essential ingredient for being termed as 'Plant and Machinery'. In the instant case, Structures/towers meant for Lighting for Plant Road, Boundary Wall and Watchtower can in no way be related to the outward supply of goods. As per Section 2(83) of CGST Act, 2017 'outward supply' in relation to a taxable person, means supply of goods or services or both, whether by sale, transfer, barter, exchange, licence, rental, lease or disposal or any other mode, made or agreed, to be made by such person in the course or furtherance of business - To apply the term 'used for' in the definition for plant and machinery, there should be a nexus between the impugned items on which ITC is being claimed and 'outward supply'. In the present case the project of lighting of plant Road, Boundary wall and watchtower will render such nexus tenuous. As per Section 103(1) of CGST Act, 2017, the advance ruling pronounced by the Authority or the Appellate Authority under this Chapter shall be binding only on the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling and on the concerned officer or the jurisdictional officer in respect of the applicant. Order of AAR upheld - appeal dismissed. Issues Involved:1. Eligibility of Input Tax Credit (ITC) on design and engineering of lighting for plant road, boundary wall, and watchtower.2. Eligibility of ITC on the supply of plant and equipment for lighting of plant road, boundary wall, and watchtower.3. Eligibility of ITC on the erection of plant and equipment for lighting of plant road, boundary wall, and watchtower.Issue-wise Detailed Analysis:1. Eligibility of ITC on Design and Engineering of Lighting:The appellant, NMDC Limited, contended that the design and engineering services for lighting of plant road, boundary wall, and watchtower should be eligible for ITC. They argued that the lighting system is essential for the continuous operation of the steel plant and should be considered as 'plant and machinery' rather than immovable property. However, the Advance Ruling Authority (AAR) ruled that the design and engineering services are part of a works contract for immovable property, thereby making them ineligible for ITC under Section 17(5) of the CGST Act, 2017.2. Eligibility of ITC on Supply of Plant and Equipment:NMDC Limited also sought ITC on the supply of plant and equipment for the lighting system. They argued that items such as street poles, fittings, aviation lamps, switch boxes, and pipes should be classified as apparatus or equipment, thus falling under the definition of 'plant and machinery.' The AAR, however, determined that these items are part of a civil structure and are immovable property. Therefore, they do not qualify for ITC as per Section 17(5) of the CGST Act, 2017, which excludes immovable property from ITC eligibility.3. Eligibility of ITC on Erection of Plant and Equipment:The appellant argued that the erection of plant and equipment for the lighting system should be eligible for ITC, as these activities are necessary for the operation of the plant. They contended that the lighting system, including its foundation and structural support, should be considered 'plant and machinery.' The AAR, however, ruled that the erection services are part of a works contract for immovable property, making them ineligible for ITC under Section 17(5) of the CGST Act, 2017.Legal Position and Analysis:The AAR and the Appellate Authority both emphasized the definition of 'works contract' and 'immovable property' under the CGST Act, 2017. They highlighted that works contracts involving the construction of immovable property, other than plant and machinery, are not eligible for ITC. The authorities also referred to various judicial precedents and statutory definitions to conclude that the lighting system, including its design, supply, and erection, constitutes immovable property and does not qualify as 'plant and machinery.'Conclusion:The Appellate Authority upheld the AAR's decision, concluding that the appellant is not entitled to ITC on the design and engineering, supply, and erection of the lighting system for plant road, boundary wall, and watchtower. The ruling emphasized that these activities are part of a works contract for immovable property, which is excluded from ITC eligibility under Section 17(5) of the CGST Act, 2017.