Buildings as 'Plant': Functionality Determines Tax Classification Under Section 17(5)(d) of CGST and TNGST Acts

The SC upheld Section 17(5)(d) of CGST and TNGST Acts, emphasizing a functionality-based test for classifying buildings as "plant". The Court directed remand to the HC of Orissa to determine if a shopping mall qualifies as a "plant". Consequently, two writ petitions challenging the show cause notice and statutory provision were dismissed, with no order on costs.

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Issues:
Challenge to show cause notice in W.P.No.15932 of 2022.
Challenge to the validity of Section 17(5)(d) of CGST Act, 2017 and TNGST Act, 2017 in W.P.No.23572 of 2022.

Analysis:
In W.P.No.15932 of 2022, the petitioner challenged a show cause notice issued against them. The High Court noted this challenge. In W.P.No.23572 of 2022, the petitioner challenged the validity of Section 17(5)(d) of both the CGST Act, 2017 and the TNGST Act, 2017. The counsel for both sides brought to the Court's attention a recent decision by the Supreme Court upholding the validity of the said provisions. The Supreme Court clarified that the expression "plant or machinery" in Section 17(5)(d) should not be equated with the definition of "plant and machinery" in Section 17. The Court emphasized that whether a building can be classified as a plant under Section 17(5)(d) depends on its functionality in the registered person's business activities. The Court directed that the writ petitions be remanded to the High Court of Orissa for determining if a shopping mall qualifies as a "plant" under Section 17(5)(d). The Supreme Court highlighted that the functionality test must be applied on a case-by-case basis to decide if the construction of an immovable property amounts to a "plant."

Subsequently, in light of the Supreme Court's decision upholding the provisions in question, the challenge against Section 17(5)(d) of both Acts in W.P.No.23572 of 2022 was rejected, leading to the dismissal of the petition. Consequently, since the challenge in W.P.No.23572 of 2022 was dismissed, the petitioner in W.P.No.15932 of 2022 was directed to face the show cause notice in accordance with the law. Therefore, W.P.No.15932 of 2022 was also dismissed. Both writ petitions were ultimately dismissed by the High Court, with no order as to costs. The connected miscellaneous petition was closed as a result of the dismissal of the writ petitions.

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