ITC AVAILABLE ON LIFT INSTALLED IN COMMERCIAL BUILDING GIVEN FOR RENT

[S.C. WADHWA]

Dear Expert,

We have purchased one lift leving gst and installed in building given on rent for commercial purpose. My query is whether GST paid on Lift in Dec.23 will be available till 30th Sept.24 as we have not show this in any gst return till now. Please give your expert opinion.

REGARDS,

WADHWA

[Amit Agrawal]

IMHO, taking ITC now and then immediately reversing it (even under table 4(B)(2)) will amount to 'not-taking ITC' - in given situation under discussion here - for the purpose of Section 16(4) read with Section 41(1) of the CGST Act, 2017.

And re-claiming such ITC in distant future (i.e. as and when as when there is a favorable decision and report the same under Table 4(D)(1)) is fraught with legal risks as such ITC taken in future will be treated as time-barred u/s 16(4) read with Section 41(1) (as, if & when detected by Dept. through audit / scrutiny / investigation etc.) for the tax-payer, IMHO.

If tax-payer is such a blind risk-taker (i.e. to take above risks), why not to take ITC now & defend such ITC (as, if & when detected by Dept. through audit / scrutiny / investigation etc. as current online system of Dept. does not know nature / classification of ITC so taken and if such ITC is wrongly taken or not). There is enough legal grounds are available to defend such ITC, if he got good professionals to defend & willingness to go through judicial process & cost thereof etc., IMHO.

And risk of loosing substantially against re-claimed ITC (to be taken in future if favorable court decision comes out) is much much greater as explained above Para/s than taking ITC now and defending it, IMHO.

Moreover, just because Dept's current system of online ITC reconciliation does not catch such misuse of the facility to 'Re-claim ITC in genuine situations permitted under law', does not give 'these misuse of facility' a legal sanctity for given situation under discussion here.

Hence, I do not see any gain to the tax-payer to reverse subject ITC now u/s 17(5) with hope of re-claiming it in the distant future. Actually, such course of action can lead to loose-loose situation for the tax-payer (i.e. even when court rules in favor of tax-payer in future on the subject ITC under discussion here).

It is better for any tax-payer to take definitive calls now about whether to take subject ITC or not, in my humble view, based on factors explained in my earlier post at Sr. No. 38.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Amit Agrawal]

Please read relevant line from my last post above as follows: Hence, I do not see any gain to the tax-payer to reverse subject ITC now either u/s 17(5) (i.e. under table 4(B)(1)) or as 'others' (i.e. under table 4(B)(2)) with hope of re-claiming it in the distant future. 

[Raam Srinivasan Swaminathan Kalpathi]

I respectfully agree to disagree with the views of Shri.Amitji.  As regards the construction industry every advocate/ CA whom this correspondent had spoken to or had the benefit of hearing their lectures have advocated this option of availing and reversing the credit under Table 4(b)(2) in the same month in R-3B and taking re-credit as when a favourable verdict emanates.  Some of the speeches have been put up on you tube also.  As already stated this correspondent is not an advocate and only makes an honest attempt to understand law.

[Amit Agrawal]

Dear Shri RaamSrinivasan Kalpathi Ji,

You have every right to disagree with my views and legal reasoning behind them. After-all, majority of contributors on TMI tries his / her best while sharing own views on any controversial issues. And it is for the querist to choose best way forward at his own risk & rewards, depending upon various factors to be considered by him. 

[Amit Agrawal]

By the way, I am expecting Apex Court to overrule Safari Retreats Private Limited - 2019 (5) TMI 1278 - ORISSA HIGH COURT. 

[Alkesh Jani]

Dear Experts,

Upon reviewing the views shared, I have a few queries that I wish to present for further clarification and discussion.

Background:

Section 17(1) of CGST Act, 2017:

This section provides that where goods or services (or both) are used by a registered person partly for business and partly for other purposes, the input tax credit (ITC) shall be restricted to the extent attributable to the business purposes.

Section 17(6) and Explanation:

The term “plant and machinery” refers to apparatus, equipment, and machinery fixed to the earth by foundation or structural support and used for making outward supply of goods or services. It includes such foundation and structural supports but excludes:

1. Land, building, or other civil structures;
2. Telecommunication towers;
3. Pipelines laid outside factory premises.

Furthermore, for clauses (c) and (d), “construction” includes re-construction, renovation, additions, alterations, or repairs, to the extent of capitalization, to the said immovable property.

Definitions:

• Section 2(107): “Taxable person” refers to an individual who is registered or required to be registered under section 22 or section 24.
• Section 2(83): “Outward supply” for a taxable person refers to the supply of goods or services, whether by sale, transfer, barter, exchange, license, rental, lease, or any other mode in the course or furtherance of business.

Query:

1. Is a lift installed in a building considered independent of the civil structure, and does it require capitalization under Section 17?

2. If the lift installed is treated as plant and/or machinery, how does it align with the definition of "outward supply" under the Act? What type of goods or services are deemed to be provided in this context?

3. What would be the appropriate HSN code for the outward supply related to the installation or use of the lift?

I look forward to your valuable insights and thank you in advance for your guidance on this matter. this query is purely for my knowledge purpose.

Thanks again.

[Amit Agrawal]

Dear Shri Alkesh Jani Ji,

I feel that your queries are recycling of 'areas of controversies' involved in the subject matter of ITC and I have already shared by views thereon in series of earlier posts above.

Still, let me answer queries raised by you once again:

Queries:

1. Is a lift installed in a building considered independent of the civil structure, and does it require capitalization under Section 17? 

My view: 

Lift can be called as 'permanent fixture of building'. But calling it 'permanent fixture of building' itself means it is otherwise 'separately identifiable immovable property' from 'a civil structure of building'. And, separately identifiable immovable property (i.e. Lifts / elevators) fits perfectly into the explanation defining P&M for taking ITC even if it excludes 'buildings'.

B2.1 'Fixture' is defined in Oxford Language as follows: a piece of equipment or furniture which is fixed in position in a building or vehicle

B3. Thus, what is excluded from P&M is 'Civil structure of Building' and NOT P&M (i.e. Lift / Elevators) which is installed / erected in such buildings.

Kindly refer to my post above at Sr. No. 30 (read with post at Sr. No. 26) for more details.

C. Section 17 does NOT prescribe mandatory capitalization of lift under the head 'Building'. Such treatment depends upon applicable accounting standards (along-with income tax & other law's provisions (if any)). Kindly refer to my post above at Sr. No. 34 for more details.

2. If the lift installed is treated as plant and/or machinery, how does it align with the definition of "outward supply" under the Act? What type of goods or services are deemed to be provided in this context?

My views: Yes. Nature of supply depends upon 'terms & conditions of agreement' with tenant / user of lift, read with Section 2(30) of the CGST Act, 2017. One of the possibility is explained by me in my posts at Sr. No. 9 read with Sr. No. 13. 

3. What would be the appropriate HSN code for the outward supply related to the installation or use of the lift?

My views: Nature of supply & appropriate HSN Code depends upon 'terms & conditions of agreement' with tenant / user of lift, read with Section 2(30) of the CGST Act, 2017.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Alkesh Jani]

Dear Shri Amitji,

Thank you for your prompt and insightful response. Based on your explanation, I have summarized the key points as follows:

• The lift qualifies as "Plant and Machinery" under the applicable definition.
• It is independent of the civil structure or building and is considered separate immovable property.
• There is no requirement to capitalize the lift in the books of account.
• The nature of outward taxable supply can be determined by the terms of the agreement between the tenant/user of the lift.

However, I would like to seek further clarification on a few additional queries:

1. Since a lift is not classified as machinery, should it be treated as "Plant"? If we categorize it as Plant, does it cease to be considered immovable property since Plant is recognized as "Goods" under the Act? In such a case, do we treat the lift as goods ?
2. In the absence of a specific contract, can the outward supply of the lift be interpreted as the service of carrying passengers? In such a scenario, would the taxable value be determined by fees charged for transporting passengers from the ground floor to the desired floor? can the lift service be free for members but chargeable for visitors?
3. If capitalization of the lift is not required, would it still fall within the ambit of "input" for the purpose of claiming input tax credit (ITC)?
4. If no charges or consideration are received from either members or visitors, can we classify the use of the lift as being outside the definition of "Supply" under the CGST Act? If so, how would input tax credit be claimed in such a case, considering there is no supply for which the ITC can be utilized?
5. On basis of which documents, (invoice or debit note) ITC can be claimed?

I am seeking clarity on these aspects for my future reference and knowledge, as it may help me handle similar cases more effectively.

Thank you in advance for your guidance and insights.

[Amit Agrawal]

Dear Shri Alkesh Jani Ji,

As desired, I am answering points raised in your last post (I am reproducing your entire post below in italics, putting my views in straight-line).

Some points are repeated in my answers and same are lengthy in nature (& my apologies in advance for the same). This is due to the fact that you have raised multiple questions which are overlapping in nature (& some are open ended or with wrong / incomplete understanding of what I stated above) and I wanted to answer every question independently & very detailed manner:

"Thank you for your prompt and insightful response. Based on your explanation, I have summarized the key points as follows:

• The lift qualifies as "Plant and Machinery" under the applicable definition.

- Yes, as per explanation given below Section 17(6) read with 'sub-clause (c) & (d) of Section 17(5) & explanation given thereunder'.

• It is independent of the civil structure or building and is considered separate immovable property. –

I never said that lift is independent of building (i.e. lift has independent existence from building). What I said that (in context of discussing ITC against Lifts) that 'remarks / observations made by Apex court in various rulings' (which are quoted by other contributors above in multiple posts) has no relevance what-so-ever for determination of subject issue under discussion here. For that, I quoted well-settled position of law about to read and treat any judgement as ‘judicial precedent’ in my post at Sr. No. 26 above and further explained my views about its plications for issue under discussion here in my post at Sr. No. 30 above.

Now, coming back to issue under discussion here (i.e. ITC against lifts), I only said that lift has 'separately identifiable immovable property' from 'a civil structure of building'. Without prejudice, I would further add now here that lifts / elevators are ‘separately identifiable immovable property' even within ‘overall building’ in common parlance (For example: Brake-down / Collapse of lift in a accident’ is NOT equated with ‘Break-down / Collapse of Building’ in common parlance). And, hence, such 'separately identifiable immovable property' (i.e. Lifts / elevators) fits perfectly into the explanation defining P&M for taking ITC even if it excludes 'buildings' per se. Please see my post at Sr. No. 30 above for more details.

• There is no requirement to capitalize the lift in the books of account. –

I never said that. I only said that whether same should be capitalized either under the head 'Building' or 'P&M' should be looked into as per applicable accounting standards (& IT & Co. law provisions, as & if applicable). And I prefer capitalization of lift under head P&M (though same is not compulsory for my views about ITC eligibility) if there is no bar to do so (& nobody till date, could point out 'specifics' to me barring such treatment). I wish to again point to my post at Sr. No. 34 above for more details.

• The nature of outward taxable supply can be determined by the terms of the agreement between the tenant/user of the lift. –

What I said was that 'Nature of supply depends upon 'terms & conditions of agreement' with tenant / user of lift, read with Section 2(30) of the CGST Act, 2017.' Kindly allow me further elaborate what I said. There are different practices followed in the industry in this regard. One of the possibilities is explained by me in my posts at Sr. No. 9 read with Sr. No. 13.

Other practice in the industry, which I am well aware of, is that there are separate entities (individual owners of property like shops / premises / entire are floor etc.) providing rental services and 'common facilities (like lift & operation & maintenance, security, DG back up & so on)' are provided by society (or builder, if society is not yet formed) having over-all ownership / possession & control of building per se.

Even if ‘owner’ of multiple premises (i.e. shops / offices / individual floors) in a building and entire building as a whole is one & same person, such arrangement (separate charge for common facilities i.e. in addition to lease / rental charges) is perfectly legal and regularly followed in the industry in their natural course of business.

However, I would like to seek further clarification on a few additional queries:

1. Since a lift is not classified as machinery, should it be treated as "Plant"? If we categorize it as Plant, does it cease to be considered immovable property since Plant is recognized as "Goods" under the Act? In such a case, do we treat the lift as goods ?

Question is not relevant from GST point of view in context of sub-clause (c) & (d) of Section 17(5) and classification of 'lift' between 'machinery & plant' is irrelevant for my views. There is only one term used 'Plant & Machinery' there which is also an immovable property. If lift per se is 'goods' (which it is not), then, there is no need for this on-going lengthy debate at all as exclusion from ITC under sub-clause (c) & (d) of Section 17(5) will not apply to ‘movable goods’. Furthermore, I do not see any provision under GST law which says 'plants' has to be movable & thereby goods.

2. In the absence of a specific contract, can the outward supply of the lift be interpreted as the service of carrying passengers? In such a scenario, would the taxable value be determined by fees charged for transporting passengers from the ground floor to the desired floor? can the lift service be free for members but chargeable for visitors?

My views are not based on supplies made to third parties like visitors etc. or some fancy structuring of subject transaction i.e. renting.

Provision of Lift with its operation & maintenance (plus other common facilities (if any) like DG back up, security & son on) is facility provided by owner to tenant along-with possession & usage of its premises (say, individual offices / shops / entire floor etc.) and these premises are in turn from part of larger building.

Once agreement states so (w.r.t. situation like there is no specific agreement, which is unlikely because same is legally binding from stamp duty / other laws. Moreover, any tax-payer who is willing to defend ITC following judicial process, should be also willing to keep proper records (i.e. agreement etc.) as it is responsibility of tax-payer claiming ITC to prove supporting factual position in support), then, it does not matter if owner charges "separately" for lift usage & its maintenance or same is included in 'rental / lease charges'.

This is in view of Section 2(30) of the CGST Act, 2017 and same fulfils requirements of explanation to the effect that lift/s are used for making outward supply of goods or services or both (for explanation given u/s 17(6)). Composite supply of renting of premises (i.e. shop / individual office/s / entire floor) along-with common facilities like provision of lift (& its operation & maintenance etc.) are two different supplies which are naturally bundled with each other where renting of premises is principal supply.

This does NOT mean that lifts are NOT used for making outward supply as Section 8 of the CGST Act, 2017 cannot be used to deny the fact that under composite supply, ‘two or more supplies’ are always provided by the supplier which are naturally bundled with each other u/s 2(30) and there is no compulsion under GST Law that composite supply cannot be for single consideration.

As far as industry practice goes in any large commercial complexes / malls etc, there is always ‘separate charge’ (in addition to rentals) for 'common facilities (such as lift and its operation & maintenance, security, DG sets etc') and this practice of rental-agreement is preferred (though not compulsory for views about ITC against lifts) wherever tax-payer intents to avail ITC against lift.

3. If capitalization of the lift is not required, would it still fall within the ambit of "input" for the purpose of claiming input tax credit (ITC)?

I never said that. I only said that whether same should be capitalized under the head 'Building' or 'P&M' should be looked into as per applicable accounting standards (& IT & Co. law provisions, as & if applicable). And I prefer capitalization of lift under head P&M (though same is not compulsory for my views about ITC eligibility) if there is no bar to do so (& nobody till date, could point out 'specifics' to me barring such treatment). I wish to again point to my post at Sr. No. 34 above for more details.

4. If no charges or consideration are received from either members or visitors, can we classify the use of the lift as being outside the definition of "Supply" under the CGST Act? If so, how would input tax credit be claimed in such a case, considering there is no supply for which the ITC can be utilized? - There is no supply without any consideration involved here.

Lift is a facility provided by owner to tenant along-with possession & usage of its premises (say, individual offices / shops / entire floor etc.) and these premises are in turn form part of entire building. Once agreement states so, then, services of provision of lift (& its operation & maintenance) (plus other common facilities, if any, like DG back up, security & on on) is part of 'composite supply u/s 2(30) of the CGST Act, 2017' from owner to tenant where renting of premises / shops will be principal supply.

This does NOT matter if contract does not show ‘separate consideration’ for such supply by way of services of provisions of lift (& its operation & maintenance) or not. Showing no separate consideration in the agreement does NOT mean that there is no consideration for provision of lifts & its operation & maintenance etc.

This is also in view of Section 2(30) of the CGST Act, 2017 and same fulfils requirements of explanation to the effect that lift/s are used for making outward supply of goods or services or both and there is no compulsion under GST Law that composite supply cannot be for single consideration.

As far as industry practice goes in any large commercial complexes / malls etc, there is always ‘separate charge’ (in addition to rentals) for 'common facilities (such as lift and its operation & maintenance, security, DG sets etc') and this practice of rental-agreement is preferred (though not compulsory for views about ITC against lifts) wherever tax-payer intents to avail ITC against lift.

5. On basis of which documents, (invoice or debit note) ITC can be claimed?" –

Please see Section 16(2)(a) of the CGST Act, 2017 read with Rule 36 of the CGST Rules, 2017.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion or recommendation.

[Alkesh Jani]

Dear Shri Amitji,

Thanks for your prompt reply.

Thanks Again

[Sadanand Bulbule]

Dear all

ITC on lift-- tsunami of divergent researched opinions are running in parallel on the same query.  The effect is, there is no unanimity on legal position. I feel this bitter truth really is stranger than fiction. Democracy guarantees freedom of expression. Everyone has to respect it.

[KALLESHAMURTHY MURTHY K.N.]

Dear all Experts, 

Installation of the lift in the building is not eligible to avail ITC since it is treated as part of immovable property. It is blocked u/s 17(5) (d).

During the VAT period also, there were cases of ITC disallowance.

With regards.

[Amit Agrawal]

Dear Shri KALLESHAMURTHY MURTHY Ji,

I think opposite sides of views on subject ITC are thoroughly presented on this discussion forum along-with legal reasoning backing such views. And both sides (i.e. contributors who feel subject ITC is available and contributors who feel subject ITC is not available) are not willing to change their position as they truly believe in respective position taken by them on the subject matter

W.r.t. your last post above, kindly let us know 'relevant provisions of VAT' under which subject ITC was denied along-with sample case-laws thereof.

This will help us to compare current gst provisions under discussion (i.e. sub-clauses (c) & (d) of Section 17(5) read with explanations given thereunder where ITC against construction of 'immovable property including land, building or any other civil construction' is denied while simultaneously 'P&M' was excluded from 'immovable property'). 

If similar provisions were existing under VAT laws & there are case-laws denying ITC using those similar provision, same will be very directly helpful to take this discussion towards some conclusion. 

Thanking you in anticipation!

[Amit Agrawal]

Also, I wonder how VAT tax-credit provisions & cases-laws thereof will be directly relevant in the situation under discussion here where issue is 'services' provided & not 'goods' sold. 

Anyway, I will wait for clarity (i.e. 'relevant provisions of VAT' under which subject ITC was denied along-with sample case-laws thereof) as requested in above post.

[KALLESHAMURTHY MURTHY K.N.]

Dear Amith Agarwal Ji, 

Sir, 

The query is about GST paid on Lift.

Here I am quoting three Advance Ruling cases referring to Sec. 17(5)(d) of the CGST Act.

Regarding cases under the VAT period, I have to verify the re-assessment orders which are not readily available now.   

1. The Maharashtra AAAR ruled that no Input Tax Credit (ITC) can be claimed on Lift Installation Charges. In the Judgment of M/S Las Palmas Co-operative Housing Society Ltd. (2020 (9) TMI 1144 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA).

The AAAR ruled that the Appellant would not be eligible to avail the ITC in respect of the GST paid to the lift contractor, in terms of Section 16(2)(b) read with Section 17(5)(d) of the CGST Act, 2017

2. AAR of MP in the case of M/s. Jabalpur Hotels Pvt. Ltd. 2020 (7) TMI 476 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH).

In this, the AAR finds that the lift consists of components or parts (goods) like lift car, motor, ropes, rails etc. and each of them has its separate identity prior to installation and when they are assembled/installed together they create lift.

It is held that the lift has become part of the building and ITC shall not be available in terms of Section 17(5)(d) of the CGST Act, 2017.

3. Tarun Realtors Private Limited (2019 (10) TMI 1021 - AUTHORITY FOR ADVANCE RULING, KARNATAKA).

In this case, the installation of the lift is treated as blocked credits u/s 17(5)(d).

Expecting more clarity on the issue.

With respects.

[Amit Agrawal]

Dear Shri KALLESHAMURTHY MURTHY Ji,

I have already dealt with these GST AAR / AAR rulings in my earlier posts above (specially at my post at Sr. 26, 30 & 32) and explained my reasons for disagreement with them. I further elaborated my views and reasoning while answering various questions put by Shri Alkesh Jani Ji in my posts at Sr. No. 47 & 49 above. 

As you mentioned about some VAT cases on similar issue in your post at Sr. No. 52 above, I had sought clarity there-against. 

[KALLESHAMURTHY MURTHY K.N.]

Dear Amit Agarwal Ji, 

The two cases of ITC disallowed pertaining to the VAT period are referred to here. 

1. M/S.FERNS ICON VAT TIN-29980819608. Assessment Period: April 2017 to June 2017 

ITC was disallowed on the purchase of the lift installed for the building on lease rent on the grounds that "the lift is a part of the building, not a separate unit and not separable from a building and does not have an identity when removed from the building. Besides, the lift does not coming under the category of Plant & Machinery."

2. M/s Aurbis Business Parks Private Ltd. [GSTN- 29AAPCA0762R1ZV,] 

Adjudication order for the period 2017-18.

Engaged in the business of letting sub-lease rental of Commercial office premises for monthly consideration.  ITC disallowed on the grounds that “Irregular availment of Transitional Credit on the capitalized goods including intangible services, for the renovation of leased hold building and all the construction activities including capitalized intangible services.

There are other similar cases squarely applicable to the query.

This is for your perusal and further comments.

With respects.

[Amit Agrawal]

Dear Shri KALLESHAMURTHY MURTHY Ji,

Kindly provide TMI citations for said two rulings, so as to provide my comments thereon. Without going through full contents of such rulings, it is difficult - at-least for me - to offer comments thereon. 

W.r.t. first case quoted by you where period of April, 2017 to June, 2017 is mentioned & hence, assuming that said case is not denial of transitional credit using GST provisions, I wish to know under 'legal provisions of VAT' which are used to use such ITC. 

I like to see if they have different from 'other quoted AAR / AAAR' in their logic & legal reasoning to deny subject ITC.

If they are using very same Apex Court rulings & observations made therein to deny subject ITC, then, my reasons for disagreement with them is already explained in my earlier posts here (specially at my post at Sr. 26, 30 & 32 read with 47 & 49).

If there is anything new in referred rulings compared to 'other quoted AAR / AAAR' in their logic & legal reasoning to deny subject ITC, I will look into them and offer my comments.

[VENU K]

The beauty of law is that it is amenable to differing interpretations and there is no universal truth as far as legal issues are concerned. This is amply clear from the fact that many High Court decisions are routinely  overruled by the Supreme Court. This in itself does not make the original decision of the High Court illegal or delivered without understanding the law in any way. So it is futile to look for the last word in law. Supreme Court becomes the final authority , just because there are no higher authorities which we could approach. We have had  many instances where higher benches of the Supreme Court overturning  decisions of  lower benches.

So, according to me .... in litigation TRUTH does not matter but FACTS do. And in each case the facts and circumstances could be different, what was pleaded by each side could be different. So each judgement is unique in its own way and all judgements are made with the caveat....... In the facts and circumstances of the case ............

So unless there is a judge who has an authority to pronounce a final  judgement after hearing both sides , whether we like it or not,  legal deliberations would  continue endlessly till eternity.

[Sadanand Bulbule]

Dear all

Whatever comments I have posted so far on this Discussion Forum is not because I am an expert but being a seriously concerned person to uphold the system of equity to all the stakeholders in the GST era. Law belongs to all in the same ratios. No one owns it per se.

So the TMI visitors are at liberty to express their views openly without any restriction or hesitation. I am sure this would buttress the discussion forum on the queries in a more democratic way. It is the basic decency of public platform.

By the way, every seed has a chance to take strong root. So also every opinion has the power to free the querists from concern. Let our comments be the new content rather than old container.

AI Summary

Input tax credit availability for lifts in rented commercial buildings turns on plant-or-machinery character and functionality test.
The central issue is whether ITC on GST paid for a lift installed in a rented commercial building is blocked as part of immovable property or is allowable because the lift qualifies as plant or machinery or a separately identifiable asset used to make outward supplies. Opinions diverge: some authorities and rulings treat lifts as integral to the building and deny credit; others rely on statutory definition, accounting treatment, contractual terms and the functionality of the asset to support ITC. Recent Supreme Court guidance applying a functionality test may expand circumstances in which ITC can be sustained, but entitlement remains fact-sensitive and advisedly supported by documentation and specialist advice.